NUMBER 1
Tool in the “Drug andTool War” Beyond Matthew B. Lawrence Health, Housing, and the Law Abraham Gutman, Katie Moran-McCabe, Scott Burris Structural Determinism Amplifying the Opioid Crisis: the It’s Healthcare, Stupid! Terry Nicolas P. The Role Pressure of Groups and Problem Definition in Crafting Legislative Solutions the to Opioid Crisis El-Sabawi Taleed Editors’ IntroductionEditors’ Seriously: Psychological Torture Taking The NatureTorturous Credible of Death Threats and the Collateral Consequences for Capital Punishment Bessler D. John Family Protection in the Law Succession: of The Policy Puzzle Storrow Richard F. Firearms and Physicians: Finding a Duty to Discuss Elisabeth Ryan J. Deputizing Family: Ones Loved as a Regulatory 1 xi 98 251 315 195 155 372 VOLUME 11 ARTICLES
VOL. 11, NO. 1 2019 VOLUME 11, NUMBER 1 ii
© 2019 Northeastern University Law Review
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Cite as 11 NE. U. L. REV. (2019). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW iii
Editorial Board Editors-in-Chief Lilian Giacoma Jason L. Burrell
Managing Editors Andrew L. Kinde Elizabeth L. Gardon
Executive Articles Editors Diandra Y. Franks Queen Arsem-O’Malley
Articles Editors Angélica Durón Maxwell S. Dismukes Sarah A. Eskreis Lauren A. Kopec Jacob R. Jarred Kyle P. Rainey
Publications Editors Kelli McIntee Ethan J. Dowling
Symposium Editors Anna Maria Annino Taarika C. Sridhar
Extra Legal Editors Ryan McGovern Quinn Jennifer R. Cullinane
Forum Editors Elena J. Despotopulos Bruce Duggan
Advisor
Sarah J. Hooke, Associate Dean & Director of Research and Information Services iv
Senior Staf Editors Nuryllen D. Aguasvivas Cassandra Gomez Meagan Antonellis Munroe Graham Moira C. Barry Shelby M. Hecht Nicole Beggiani Gary Howell-Walton Stephanie H. Berland Jefrey W. Kennedy Amanda M. Bishop Madison L.T. Lang Samantha E. Bresler Rachel L. Mills Alison H. Bushey Michael C. Murphy Ariel C. Chang Mark Overton Kelly E. Cooke Patricia Perez Caroline S. Daniels Timothy A. Roberts Maria J. de la Motte Nina M. Schwartzman Anastasia Doherty Amanda Varrichione Sean Doucet Annie M. Vozar Elizabeth C. Egan Samantha Westbrook Susmita Gadre VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW v
Staf Editors Geofrey W. Alden Colleen Maney Kristen N. Annunzato Brigitte Meyer Victoria C. Aronson Leeja Miller Renna Ayyash Gianna M. Nappi Matthew Barg Sarah Odion Esene Alexandra E. Bender Nancy S. O’Neil Jessica P. Bresler Natalie F. Panariello Lauren B. Bressman Brianna L. Paton Katelyn E. Burgess Sarah P. Pavlini Jonathan K. Butts Natalia E. Peña Sarah E. Canapari Justin A. Pires Kaila D. Clark Moriah L. Preston Emma Dismukes Gabrielle R. Rasmussen Christie Dougherty Seth R. Reiner Jordana A. Douglas Maxwell T. Robidoux Grainne Dunne Lyndsay I. Roy Jessica Faunce Caleb J. Schroder Alexandra Fernandez Christian Nicholas Scripter Abigail Fletes Austin W. Smith Alaina L. Gilchrist Dan Otis Smith Jefrey R. Gribouski Nour Sulaiman Lucas Guevara Sitraka St. Michael Amy L. Hahn Brianna C. Sullivan Emma Halas-O’Connor Erin P. VanBuskirk Pablo Hernandez Romero Joel A. Wetmore Brendan J. Hersey Jennifer M. Wilson Aidan G. Iverson Rose Woodbury Thomas R. Jackson Kristen Zale Rachel M. Jones Larisa Zehr Alexandra M. Klindienst vi
Non-Discrimination Policy
Northeastern University does not condone discrimination on the basis of race, color, religion, religious creed, genetics, sex, gender identity, sexual orientation, age, national origin, ancestry, veteran, or disability status. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW vii
Faculty James R. Hackney, Jr. Leo Beletsky Dean and Professor of Law Associate Professor of Law & Health Sciences Martha F. Davis Professor of Law and Associate Dean for Elizabeth M. Bloom Experiential Education Teaching Professor
Sarah J. Hooke Lee P. Breckenridge Teaching Professor and Associate Dean Professor of Law and Director of Research & Information Services Margaret A. Burnham Kristin M. Madison University Distinguished Professor of Law and Director, Civil Rights and Restorative Professor of Law and Health Sciences and Justice Project Associate Dean for Academic Afairs
Margaret Y.K. Woo Dan Danielsen Professor of Law and Faculty Director, Professor of Law and Associate Dean for Program on the Corporation, Law & Research and Interdisciplinary Education Global Society
Roger I. Abrams Richard A. Daynard Richardson Professor of Law Emeritus University Distinguished Professor of Law and President, Public Health Advocacy Libby S. Adler Institute Professor of Law and Women’s, Gender and Sexuality Studies Christine M. Durkin Associate Teaching Professor Aziza Ahmed Professor of Law Rashmi Dyal-Chand Professor of Law Brook K. Baker† Professor of Law Peter D. Enrich Professor of Law Shalanda H. Baker Professor of Law, Public Policy and Urban Julian M. Fray Afairs Assistant Teaching Professor
† Masters in Legal Studies Faculty viii
Faculty (cont.) Hemanth C. Gundavaram Margo K. Lindauer Teaching Professor and Co-Director, Associate Teaching Professor and Director, Immigrant Justice Clinic Domestic Violence Institute
Margaret Hahn-Dupont Carol R. Mallory Teaching Professor and Program Associate Teaching Professor Administrator, Legal Skills in Social Context Andrea M. Matwyshyn Professor of Law and Co-Director, Center Stephanie R. Hartung for Law, Innovation and Creativity Teaching Professor Susan A. Maze-Rothstein Woodrow Hartzog Teaching Professor Professor of Law and Computer Science Victoria McCoy Claudia E. Haupt Assistant Teaching Professor and Director, Associate Professor of Law and Political Academic Success Program Science Daniel S. Medwed Wallace E. Holohan University Distinguished Professor of Law Senior Clinical Specialist and Director of & Criminal Justice and Faculty Director, the Prisoners’ Rights Clinic Professional Development
Karl E. Klare Michael Meltsner George J. and Kathleen Waters Matthews George J. and Kathleen Waters Matthews Distinguished University Professor of Law Distinguished University Professor of Law Kandace Kukas Assistant Dean and Director of Bar Susan Barbieri Montgomery Executive Professor of Law & Business Admission Programs
† Mary E. Landergan Wendy E. Parmet Matthews Distinguished University Associate Teaching Professor and Co- Professor of Law, and Director, Center for Director, IP CO-LAB Health Policy & Law; Professor of Public Policy & Urban Afairs, Northeastern University School of Public Policy & Urban Afairs
† Masters in Legal Studies Faculty VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW ix
Faculty (cont.) Jeremy R. Paul Peter B. Sessa Professor of Law Associate Teaching Professor and Director, Community Business Clinic David M. Phillips† Professor of Law Jessica M. Silbey Professor of Law and Co-Director, Center Jason Potter for Law, Innovation and Creativity Associate Teaching Professor Ira Sills Lecturer in Law Deborah A. Ramirez Professor of Law Emily A. Spieler Hadley Professor of Law H.C. Robinson Associate Professor of Law and Sociology Kara W. Swanson Professor of Law Sonia Elise Rolland Professor of Law and Faculty Director, Lucy A. Williams LLM and International Programs Professor of Law and Faculty Director, Center for Public Interest Advocacy and Rachel E. Rosenbloom Collaboration Professor of Law and Co-Director, Immigrant Justice Clinic Rose Zoltek-Jick Associate Teaching Professor and James V. Rowan† Associate Director, Civil Rights and Professor of Law and Director, Clinical Restorative Justice Project Programs
Adjunct and Visiting Faculty Joshua L. Abrams Gary Cooper Scott Akehurst-Moore Kyle Courtney Helena Alviar† Joshua Davis Mark N. Berman Fernande RV Dufy Jay D. Blitzman Angela Duger Robert G. Burdick Dawn Efron Peter Campia Elizabeth Fahey Nina Farber † Masters in Legal Studies Faculty x
Adjunct and Visiting Faculty (cont.)
Patricia Garin William Mostyn Mark Gottlieb Stephen Novak Ilana Greenstein Patricia O’Connell Joshua S. Grinspoon† Carla Perrotta L. Elliott Hibbler Michael Pezza, Jr. Patricia Illingworth Alex G. Philipson Ivana Isailovic Alexandra Roberts David Ismay Arnold R. Rosenfeld R. Marc Kantrowitz Stuart Rossman Michael Keating Alfreda Russell Barbara Ellis Keefe Robert (Rusty) Russell Melvin Kelley Yuliya G. Scharf Kenneth King Amy Remus Scott Stephen M. Kohn James A.W. Shaw Jootaek Lee Rachel Thrasher Neil T. Leifer Michael Tumposky Sofa Lingos Kevin Wall Liliana Mangiafco Jamie Wacks Julia Maycock Mark Worthington Stephen McJohn Masters of Legal Studies Faculty Patricia Davidson Natacha Thomas Thomas Madden Dan Urman Sean Nolon Kevin F. Wall Rebecca Rausch Marsha White
† Masters in Legal Studies Faculty VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW xi
Editors’ Introduction
Now in its 12th year, the Northeastern University Law Review continues to evolve in new and innovative ways. After a successful transition in 2017 from a Law Journal to a Law Review, the Law Review set its sights on promoting collaboration with the professors, centers, and institutes at Northeastern University School of Law (NUSL). In this volume, the Law Review is proud to introduce the result of those successful partnerships. This issue features an exciting collaboration with the NUSL Center for Health Policy and Law, and the next issue will showcase articles from a NUSL professor’s work with the Innocence Network Conference. This issue highlights a range of academic experts in the felds of death penalty law, probate law, and health law and policy. John D. Bessler explores how the death penalty and the indefnite nature of death row in the United States creates a constant threat of death, which can violate the United Nations Convention Against Torture’s prohibitions on death threats. Richard F. Storrow conducted a frst- of-its-kind 50-state review of succession laws and analyzes how these varying laws may fail to adequately provide for surviving spouses and children. The rest of this issue showcases the innovative works of health law experts who were selected to present their research at the Center for Health Policy and Law’s Annual Health Law Conference on April 12–13, 2018. The theme of the conference, “Diseases of Despair: The Role of Health Policy and Law,” examined a trend of increasing mortality among middle-aged white non-Hispanic men and women in the United States due to deaths of despair (death from suicide, chronic substance use, and overdoses). The conference brought together experts, policymakers, and academics to discuss the causes behind such trends, and to explore potential political, policy, and legal responses for addressing broader determinants that afect the physical and mental health of Americans dying from these diseases of despair. Elisabeth J. Ryan, viewing gun violence through a public health lens, argues that physicians have a duty to discuss gun safety with their patients and to warn of the dangers of their presence in patients’ homes. Matthew B. Lawrence analyzes the social consequences of deputizing family members in the voluntary and involuntary treatment of individuals with substance use disorders. Abraham Gutman, Katie Moran-McCabe, and Scott Burris propose a model of xii legal levers that may be utilized in promoting and achieving more equitable housing policies. Nicolas P. Terry delves into the healthcare system, such as the stratifcation of insurance markets, the instability inherent to Medicaid coverage, and inadequate care in prison, to explain why the healthcare system has not only been slow to respond to, but in some cases has actually perpetuated, the nation’s ongoing opioid crisis. Taleed El-Sabawi, analyzing two years of congressional hearing testimony on substance abuse and overdoses, highlights the varying narratives employed by pressure groups and the efects of such narratives on federal drug policy, particularly in the opioid crisis. In addition to collaborations with the centers and institutes at NUSL, the Law Review hosts an annual symposium to explore a contemporary legal topic. During this year’s symposium, titled “Rethinking Borders: Climate Change, Migration, and Human Rights,” panelists and attendees explored the interplay between migration, human rights, and climate change, with the goal of developing innovative solutions to the current immigration and refugee crisis. The theme of borders grounded the discussion, focusing on how borders are expressed as natural forms, as well as human-made borders that are manifested in laws and policies. The symposium was generously co-sponsored by the Program on Human Rights and the Global Economy, the NUSL Chapter of the International Refugee Assistance Project, the Raoul Wallenberg Institute of Human Rights and Humanitarian Law, and the Center for Public Interest, Advocacy and Collaboration, all of whom the Law Review graciously thanks for helping bring the symposium to fruition. The Law Review also continues to grow its online presence by publishing high-caliber student, alumni/ae, and practitioner pieces on two platforms: Extra Legal and the Forum. Extra Legal is the Law Review’s online counterpart aimed at publishing legal commentaries that provide practical value by explaining the law, taking bold stances on the state of the law, and posing thoughtful questions on emerging issues. A sampling of its many publications includes: Tripping Over Power Lines: Heydinger, Epel, and States’ Autonomy in Set- ting Renewable Energy Standards; Energy Storage: To Be, or Not To Be . . . What, Exactly? That Is the Real Question; and The Constitutionality of Sec- tion 23 of Massachusetts’s Recreational Marijuana Law. The Forum is a legal blog dedicated to student, faculty, and practitioner discourse in current legal topics. It provides an opportunity for students to have a clear and unique voice on a topic of their choice, and show- cases the wide-ranging expertise of NUSL students. Highlights from VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW xiii this year’s publications include: Jef Sessions Further Burdens Domestic Violence Asylum Seekers in Matter of A-B-; Twitter Fingers Turn to Eight Fig- ures: SEC v. Elon Musk, Tesla; and SCOTUS in Context: A Brief History of the ACCA Before the Court. This volume would not have been possible without the tremendous eforts of our Stafers and Senior Stafers. The Editorial Board is extremely proud to see the Law Review’s excit- ing evolution and is confdent that the Law Review will continue to grow. We have also received invaluable guidance and support from our dedicated faculty advisor, Associate Dean and Director of Research and Information Services Sarah J. Hooke, for whom we are eternally thankful. Lastly, we would like to thank Dean James R. Hackney and the entire faculty and staf of Northeastern University School of Law for their continued support of the Law Review and its mission.
Editorial Board Northeastern University Law Review xiv
In Memory of
Brian Patrick Morrissey
Editor-in-Chief, Northeastern University Law Review, 2014–2015 VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 1
Taking Psychological Torture Seriously: The Torturous Nature of Credible Death Threats and the Collateral Consequences for Capital Punishment
By John D. Bessler*
* Associate Professor, University of Baltimore School of Law; Adjunct Professor, Georgetown University Law Center; Visiting Scholar/Research Fellow, Human Rights Center, University of Minnesota Law School (Spring 2018); Of Counsel, Berens & Miller, P.A., Minneapolis, Minnesota. 2 Bessler
Table of Contents I. Introduction ...... 3 II. The Illegality and Torturous Nature of Threats of Death ...... 14 A. Existing Legal Protections Against Death Threats Against Individuals...... 14 B. Death Threats, Persecution, and the U.S. Constitution’s Eighth Amendment ...... 18 C. The Torturous and Coercive Nature of Threats of Death 33 III. The Nature of Capital Prosecutions ...... 35 A. Threats of Death in Penal Systems ...... 35 B. Capital Charges, Death Sentences, and Execution Protocols ...... 43 IV. The Torturous Nature of State-Sanctioned Killing ...... 49 A. Mental vs. Physical Pain or Sufering ...... 49 B. The Torturous Efects of Death Sentences and Executions ...... 56 C. The Importance of Human Dignity ...... 60 D. The Coercive Nature (and Distorting Efects) of Death Threats ...... 64 E. Death Row, “Mock” Executions, and Threats to Life or Bodily Integrity ...... 67 V. Taking Psychological Torture Seriously ...... 70 A. Death Threats as a Form of Psychological Torture ...... 70 B. The Definition of Psychological Torture ...... 72 C. The Torturous Nature of Non-Lethal Acts ...... 80 D. The “Lawful Sanctions” Issue ...... 88 VI. Conclusion...... 94 VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 3
I. Introduction The modern defnition of torture makes clear that torture can be either physical or psychological in nature.1 The U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which entered into force in 19872 and which the U.S. ratifed in 1994, defnes torture in just those terms.3 In particular, that convention defnes torture as “any act by which severe pain or sufering, whether physical or mental, is intentionally inficted on a person” for a prohibited purpose, such as to obtain a confession or to punish.4 The Inter-American Convention to Prevent and Punish Torture likewise defnes torture “to be any act intentionally
1 The Oxford English Dictionary (1971) defnes torture as “severe or excruciating pain or sufering (of body or mind).” Accord David Luban, Torture, Power, and Law 116 (2014); WMA Declaration of Tokyo, World Med. Ass’n (Mar. 22, 2017), https://www.wma.net/policies-post/wma- declaration-of-tokyo-guidelines-for-physicians-concerning-torture-and- other-cruel-inhuman-or-degrading-treatment-or-punishment-in-relation-to- -detention-and-imprisonment/ (“For the purpose of this Declaration, torture is defned as the deliberate, systematic or wanton infiction of physical or mental sufering by one or more persons acting alone or on the orders of any authority, to force another person to yield information, to make a confession, or for any other reason.”). The World Medical Association’s Declaration of Tokyo was originally adopted by the 29th World Medical Assembly in Tokyo, Japan, in October 1975. Id.; see also Bonita Meyersfeld, Domestic Violence and International Law 78 (2010) (“The traditional defnition of torture contains four elements: severe pain and sufering, whether mental or physical; intent; purpose; and state involvement.”). 2 A total of 163 countries are parties to the convention. United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, 1465 U.N.T.S. 85, https:// treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV- 9&chapter=4&lang=en (listing parties). 3 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, 1465 U.N.T.S 113 [hereinafter “Convention Against Torture” or “CAT”]; Jennifer K. Elsea et al., The Treatment of Prisoners: Legal, Moral or Criminal? 211 (Ralph D. McPhee ed., 2006) (noting that the U.S. “signed CAT on April 18, 1988, and ratifed the Convention on October 21, 1994, subject to certain declarations, reservations, and understandings”). 4 CAT, supra note 3, at art. 1. Cf. Rome Statute of the International Criminal Court art. 7(2)(e), July 17, 1998 (“‘Torture’ means the intentional infiction of severe pain or sufering, whether physical or mental, upon a person in the custody or under the control the accused; except that torture shall not include pain or sufering arising only from, inherent in or incidental to, lawful sanctions.”); David Weissbrodt & Cheryl Heilman, Defning Torture and Cruel, Inhuman, and Degrading Treatment, 29 L. & Ineq. 343 (2011) (discussing the defnition of torture). 4 Bessler performed whereby physical or mental pain or sufering is inficted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose.”5 Death threats, because of their unlawful and invidious nature6 and their potentially coercive efects, normally have signifcant, adverse legal consequences.7 They may result in the evidentiary exclusion of confessions obtained through such means,8 amount to persecution,9 or lead to civil liability, whether for intentional
5 Organization of American States, Inter-American Convention to Prevent and Punish Torture art. 2, Dec. 9, 1985, O.A.S.T.S. No. 67. “Torture,” that convention continues, “shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish.” Id. As that convention further provides: “The concept of torture shall not include physical or mental pain or sufering that is inherent in or solely the consequence of lawful measures, provided that they do not include the performance of the acts or use of the methods referred to in this article.” Id. 6 See Lacey v. Allstate Indemnity Co., No. 2:12-cv-02051-SGC, 2015 WL 875379, at *7 n.7 (N.D. Ala. Mar. 2, 2015) (“‘barbaric means’ included death threats toward the plaintif and his children”). 7 1 Encyclopedia of Death and the Human Experience 553 (Clifton D. Bryant & Dennis L. Peck eds., 2009) (“In general, a death threat is not protected speech if there is intent to follow through with the threat. Other factors are considered in determining an unlawful death threat, such as the context in which the threat occurred and whether the target is fearful of serious harm. The means by which an illegal death threat can be communicated include speech, telecommunications, mail, e-mail, and the Internet.”). 8 See United States v. Jenkins, 938 F.2d 934, 937 (9th Cir. 1991) (“the beatings and death threats alone were sufcient to make the initial confession coerced”); id. at 940 (“the implicit threat of a repetition of the beatings and the fear that the police might make good on their twice-promised death threat were sufcient to render Jenkins’s 2:00 a.m. confession coerced”); Browner v. State, 765 S.E.2d 348, 352 (Ga. 2014) (“Physical or mental torture is the type of fear of injury that prevents a confession from being admissible . . . .”); David H. Kaye et al., The New Wigmore: A Treatise on Evidence, Expert Evidence § 8.8.3(5)(ii) (2d ed. 2018) (“A credible death threat is an enormous risk factor for confessions in general— when this factor is present, a confession is much more likely to occur . . . .”). 9 Lomtyeva v. Sessions, 704 F. App’x 677, 678 (9th Cir. 2017) (citation omitted) (fnding that “a ‘specifc and menacing death threat’ from a police ofcial” is “‘strong evidence of persecution’”); Marcos v. Gonzales, 410 F.3d 1112, 1119 (9th Cir. 2005) (“Credible death threats . . . can support a fnding of past persecution.”); Corado v. Ashcroft, 384 F.3d 945, 947−48 (8th Cir. 2004) (a “specifc, credible, and immediate” death threat can VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 5 infiction of emotional distress (“IIED”),10 by creating a hostile work environment,11 or otherwise.12 For example, threats of murder13
constitute persecution); Cordon-Garcia v. INS, 204 F.3d 985, 991 (9th Cir. 2000) (“threats of violence and death are enough” to establish persecution); see also Singh v. Lynch, 637 F. App’x 320 (9th Cir. 2016) (“Credible death threats, combined with an actual assassination attempt shortly thereafter, substantially supports a fnding of past persecution. Therefore, Singh has unquestionably demonstrated that he sufered past persecution . . . .”); Gutierrez-Vidal v. Holder, 709 F.3d 728, 732 (8th Cir. 2013) (“Persecution ‘includes the credible threat of death, torture, or injury to one’s person or liberty on account of a protected ground,’ but does not include ‘low-level intimidation and harassment.’” (citing Matul-Hernandez v. Holder, 685 F.3d 707, 711 (8th Cir. 2012)); Mashiri v. Ashcroft, 383 F.3d 1112, 1120 (9th Cir. 2004) (“Persecution may be emotional or psychological, as well as physical.”); id. at 1121 (“Viewed cumulatively, Zakia’s evidence of a death threat, violent physical attacks against her husband and sons, a near- confrontation with a violent mob, vandalism, economic harm and emotional trauma compels a fnding of past persecution.”); Reyes-Guerrero v. INS, 192 F.3d 1241, 1243 (9th Cir. 1999) (death threats against prosecutor were on account of his political opinion, supporting claim of a well-founded fear of persecution). 10 Bobola v. F/V Expectation, 204 F. Supp. 3d 382 (D. Mass. 2016) (“[A]llegations involving extreme or outrageous threats, such as death threats, can be sufcient to state a claim for IIED.”); Denton v. Silver Stream Nursing & Rehab. Ctr., 739 A.2d 571, 577 (Pa. Super. Ct. 1999) (holding that death threats by a coworker, who was found to be in possession of a frearm at work, stated an IIED claim). 11 Pryor v. United Air Lines, Inc., 791 F.3d 488, 496−97 (4th Cir. 2015) (a death threat left for an airline employee in a secure, restricted space, along with the “ample evidence” that the employee was “subjectively terrifed after receiving the threats,” were sufcient to fnd a hostile work environment); Allen v. Mich. Dep’t of Corr., 165 F.3d 405, 411 (6th Cir. 1999) (holding that a hostile work environment existed where the individual received a threatening letter that contained a death threat; the note was signed by the “KKK” and contained a reference to lynching, a drawing of a stick fgure with a noose around its neck). Those making death threats to coworkers are subject to termination of employment. Stephenson v. Amsted Industries Inc., No. 09-CV-12267, 2010 WL 5894939, at *7 (E.D. Mich. Oct. 13, 2010) (“[S]everal courts have held that death threats against coworkers constitute a legitimate nondiscriminatory reason for termination . . . .” (citing Smith v. Leggett Wire Co., 220 F.3d 752, 759 (6th Cir. 2000)). 12 Death threats—it has been written—“are not ‘acts which merely constitute harassment, disrespectful or disparate treatment, a hostile work environment, humiliating criticism, intimidation, insults or other indignities.’” Turley v. ISG Lackawanna, Inc., 803 F. Supp. 2d 217, 255 (W.D.N.Y. 2011) (quoting Lydeatte v. Bronx Overall Econ. Dev. Corp., No. 00 Civ. 5433, 2001 WL 180055, at *2 (S.D.N.Y. Feb. 22, 2001)). 13 Amouri v. Holder, 572 F.3d 29, 33 (1st Cir. 2009) (citation omitted) (“To establish persecution, an alien must demonstrate that the harm (whether 6 Bessler or putting a gun to one’s head as part of a threat to kill can be compelling evidence of past persecution.14 Death threats can also lead to the dismissal of a civil case,15 result in criminal prosecutions and convictions,16 show consciousness of guilt for an underlying
actual or feared) is more than the sum total of ordinary harassment or mistreatment. We need not probe that point too deeply; this case involves claimed threats of murder—and threats of murder easily qualify as sufciently severe harm.”); Lin Un v. Gonzales, 415 F.3d 205, 210 (1st Cir. 2005) (citing Aguilar-Solis v. INS, 168 F.3d 565, 570 (1st Cir. 1999)) (“It seems to us that credible verbal death threats may fall within the meaning of ‘persecution.’ We have indicated that a threat to life could amount to persecution.”). 14 Singh v. Holder, 585 F. App’x 530, 531 (9th Cir. 2014) (“Singh’s statement that the KLF members held a gun to his head when they threatened him was a particularly important aspect of his claim to consider in assessing whether he had experienced past persecution.”). 15 Kalwasinski v. Ryan, No. 96-cv-6475, 2007 WL 2743434, at *2 (W.D.N.Y. Sept. 17, 2007) (“Death threats directed at an opposing party and a witness are sufciently serious to warrant the sanction of dismissal.”); see also Michael v. Boutwell, 138 F. Supp. 3d 761, 785 (N.D. Miss. 2015) (“When considering whether dispositive relief is an appropriate sanction for witness intimidation, other courts have considered: (1) the nature of the threat; (2) whether the threat is likely to have a chilling efect on testimony; (3) whether the threats ‘are the result not of malice but of mental illness;’ and (4) whether the threats are the only instance of improper litigation conduct.”). 16 United States v. Mann, No. 99-4115, 2000 WL 372243 (8th Cir. Apr. 12, 2000) (afrming conviction for mailing threatening letter to the President of the United States); Li v. Shelhamer, No. 5:12-CV-1435 (LEK/DEP), 2013 WL 4483081, at *1 (N.D.N.Y. Aug. 20, 2013) (following a jury trial, a person was convicted of eleven counts of transmitting death threats in violation of 8 U.S.C. § 875 and sentenced to 114 months in prison); Baldwin v. Commonwealth, No. 0740-17-4, 2018 WL 3430995, at *1 (Va. Ct. App. July 17, 2018) (afrming conviction following man’s guilty plea for sending written threat to kill or do bodily harm to woman and her daughter); State v. Cameron, No. 48619-9-II, 2017 WL 2365118, at *1 (Wash. Ct. App. May 31, 2017) (afrming conviction for “felony harassment-death threats”); see also Radford v. State, 538 S.W.3d 894, 895 (Ark. Ct. App. 2018) (citation omitted) (“A person commits the ofense of frst-degree terroristic threatening if, with the purpose of terrorizing another person, he or she threatens to cause death or serious physical injury to another person.”); State v. Robb, 723 N.E.2d 1019, 1034−35 (Ohio 2000) (“Defendant’s threats to kill a guard or cut of a guard’s hand helped prove his intent to kill . . . .”). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 7 ofense,17 create a confict of interest,18 and lead to aggravated sentences.19 Because of their severity, credible death threats have been found to be torturous in nature,20 with the Convention Against
17 United States v. Castleman, 795 F.3d 904, 915 (8th Cir. 2015) (citations omitted) (“[E]vidence of death threats against witnesses . . . is generally admissible against a criminal defendant to show consciousness of guilt of the crime charged.”); State v. Diggins, 836 N.W.2d 349, 357 (Minn. 2013) (citations omitted) (“Evidence of a threat made by the defendant against a witness is relevant to show the defendant’s ‘consciousness of guilt.’”). 18 Locascio v. United States, 395 F.3d 51, 57 (2d Cir. 2005) (“[N]o one would question that a credible death threat from a co-defendant ordering a lawyer to sacrifce a client’s interests constitutes an actual confict of interest.”); People v. Avila, 119 Cal. Rptr. 3d 657, 663 (Cal. Ct. App. 2011) (“Here, there was a credible death threat resulting in the fling of new criminal charges against appellant. The public defender is both the named victim and a necessary witness at any trial on those charges. The trial court properly concluded that the removal of the public defender and the appointment of confict counsel was an appropriate way to proceed.”); State v. Barrett, No. M2009-02636-CCA-R3-CD, 2012 WL 2870571, at *34 (Tenn. Crim. App., July 13, 2012) (“[E]vidence of the Defendant’s statements about having killed before and his threats to kill other inmates was admissible.”). 19 United States v. Dougherty, 632 F. App’x 993, 995 (11th Cir. 2015) (“In explaining why an upward variance was warranted in this case, the district court also noted that it had considered the death threats made to bank customers and employees . . . .”); United States v. Sogan, 388 F. App’x 521, 523 (6th Cir. 2010) (“This court has repeatedly held that notes containing the statement, ‘I have a gun,’ qualify for the enhancement for threats.”); United States v. Hunn, 24 F.3d 994, 999 (7th Cir. 1994) (“[T]he district court properly enhanced Hunn’s sentence under U.S.S.G. § 2B3.1(b)(2)(F) for his death-threats made during the bank robbery.”); Perkins v. State, 559 N.W.2d 678, 692 (Minn. 1997) (“The sentencing judge found ‘particular cruelty’ in Perkins’ death threats to A.L. and her children . . . .”); State v. Brown, No. A15-0108, 2016 WL 281072, at *1−2 (Minn. Ct. App. Jan. 25, 2016) (“The PSI identifed aggravating factors, including . . . appellant’s threats against her family . . . .”); State v. Jackson, 596 N.W.2d 262, 267 (Minn. Ct. App. 1999) (fnding “multiple aggravating factors,” including holding gun to victim’s head and threatening to kill her, made defendant’s crimes “severe”; “death threats and use of handcufs, and the psychological impact of his crimes” justifed “a double-durational departure from the sentencing guidelines”). 20 Congressional Research Service, 7-5700, R40139, Closing the Guantanamo Detention Center: Legal Issues 25 (2009) (“In November 2008, a military commission judge ruled that statements made by a detainee to U.S. authorities were tainted by his earlier confession to Afghan police hours before, which had purportedly been made under threat of death. The judge concluded that the coercive efects of the death threats producing the detainee’s frst confession had not dissipated by the time of 8 Bessler
Torture itself barring the use of any statement made as a result of torture.21 The right to be free from torture is a universal, non- derogable right,22 and not even prisoners or heinous ofenders can be subjected to torturous treatment or punishment.23 As both
the second. Subsequently, a federal habeas court ruled that ‘every statement made by the detainee since his arrest [was] a product of torture. . . .’”) (citing United States v. Jawad, D-021 (Nov. 19, 2008)). 21 CAT, supra note 3, at art. 15 (“Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”). 22 G.A. Res. 2200 (XXI), International Covenant on Civil and Political Rights, art. 7 (Dec. 16, 1966) [hereinafter “ICCPR”] (“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”); G.A. Res. 217 (III) A, Universal Declaration of Human Rights, art. 5 (Dec. 10, 1948) [hereinafter “Universal Declaration of Human Rights”] (“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”). See also G.A. Res. 3452 (XXX), annex, Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, at art. 3 (Dec. 9, 1975) [hereinafter “Declaration on the Protection of All Persons”] (“No State may permit or tolerate torture or other cruel, inhuman or degrading treatment or punishment. Exceptional circumstances such as a state of war or a threat of war, internal political instability or any other public emergency may not be invoked as a justifcation of torture or other cruel, inhuman or degrading treatment or punishment.”); ICCPR, supra, at art. 4(2) (“No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision.”); Daniel O’Donnell, The Obligation to Establish Sentences for Torture that Are Commensurate with the Gravity of the Ofense, 22 Buff. Hum. Rts. L. Rev. 95, 96 (2015) (citation omitted) (“The prohibition of torture is jus cogens—a peremptory norm that applies to all members of the international community, independently of their treaty obligations. One of the many obligations concerning torture recognized by international law is that of criminalizing torture and making it ‘punishable by appropriate penalties which take into account [the] grave nature’ of this crime.”). 23 Human Rights Watch, Ill-Equipped: U.S. Prisons and Offenders with Mental Illness 204 (2003) (“The ICCPR is the most comprehensive international human rights treaty the United States has ratifed and it includes provisions explicitly intended to protect prisoners from abuse or mistreatment. Under ICCPR article 7, no one ‘shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’ The prohibition against such abusive treatment applies to prison authorities, governing both actions against individual prisoners as well as the overall conditions of confnement in which prisoners live.”). Cf. Roper v. Simmons, 543 U.S. 551, 560 (2005) (“By protecting even those convicted of heinous crimes, the Eighth Amendment reafrms the duty of the government to respect the dignity of all persons.”). The Grand Chamber of the European Court of Human Rights has held on multiple occasions VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 9 the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (“ICCPR”) make clear: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”24 While courts have not always found death threats to be credible or to amount to torturous conduct,25 threats that place individuals in great fear can (and often have been found to) constitute acts of mental or psychological torture.26 With credible death threats producing psychological terror already treated as torturous in nature, this article explores what the collateral consequences are for capital prosecutions and death sentences.27 After all, death threats are ordinarily unlawful28 and
that the prohibition against torture makes for no exceptions. E.g., El-Masri v. Former Yugoslav Republic of Maced., App. No. 39630/09, Eur. Ct. H.R. ¶ 195 (2012). 24 Universal Declaration of Human Rights, supra note 22, at art. 5; ICCPR, supra note 22, at art. 7. 25 See Velasco v. Holder, 436 F. App’x 379, 379 (5th Cir. 2011); Salan-Espinoza v. Holder, 446 F. App’x 833, 834 (9th Cir. 2011). A fnding of torture requires a case-by-case examination, and factfnders must sort through whether acts, including particular threats, rise to the level of torture or not. Seth Lowry, Truth Be Told: Truth Serum and Its Role in the War on Terror, 20 Regent U. L. Rev. 337, 348−50 (2008) (“[C]ourts have opted to analyze torture claims on a case-by-case basis and usually base their decision on the gruesomeness, intensity, or shock value of the treatment alleged . . . .”). 26 John D. Bessler, The Death Penalty as Torture: From the Dark Ages to Abolition 218 (2017) (“[T]he Tennessee Supreme Court noted of ‘threats to kill’ that ‘the anticipation of physical harm to one’s self or a loved one constitutes mental torture.’”); id. (discussing the interrogation of criminal suspects who were sufocated with plastic bags and had loaded guns pointed at their heads during rounds of Russian roulette). 27 Collateral consequences—in ordinary parlance—“are the legal disabilities that attach as an operation of law when an individual is convicted of a crime but are not part of the sentence for the crime.” Clair A. Cripe et al., Legal Aspects of Corrections Management 505 (3d ed. 2013). “Examples of collateral consequences include the denial of government issued licenses or permits, ineligibility for public services and public programs, and the elimination or impairment of civil rights.” Id. In this article, the collateral consequences terminology is employed in a slightly diferent manner. It refers here to the consequences fowing from the fact that death threats are already treated by the law as illegal, cruel, and torturous acts. 28 Death threats are serious ofenses. E.g., 18 U.S.C. § 871 (1994) (“Whoever knowingly and willfully deposits for conveyance in the mail or for a delivery from any post ofce or by any letter carrier any letter, paper, writing, print, missive, or document containing any threat to take the life of, to kidnap, or to infict bodily harm upon the President of the United States, the President- elect, the Vice President or other ofcer next in the order of succession to the ofce of President of the United States, or the Vice President-elect, 10 Bessler capital charges and death sentences are, at bottom, nothing more than state-sponsored threats of death.29 While the Convention Against Torture has a “lawful sanctions” exception to torture,30 and while the death penalty remains on the books in certain nations and locales at this point in time,31 if death threats, because of their immutable characteristics, qualify as acts of torture, then that fact should logically have serious implications for death penalty jurisdictions. The world’s nations, by signing and ratifying the Convention Against Torture, have collectively agreed to prevent and criminalize torture in all forms.32 Indeed, torture has, for decades,
or knowingly and willfully otherwise makes any such threat against the President, President-elect, Vice President or other ofcer next in the order of succession to the ofce of President, or Vice President-elect, shall be fned under this title or imprisoned not more than fve years, or both.”). 29 Proponents of capital punishment frequently ground their defense of it on the idea that the threat of death may deter crime. Glenn M. Bieler, Death Be Not Proud: A Note on Juvenile Capital Punishment, 7 N.Y.L. Sch. J. Hum. Rts. 179, 179 (1990) (“Proponents claim the threat of death deters severe criminal behavior.”). In fact, the death penalty has not been shown to be a greater deterrent to violent crime than life-without-parole sentences. See National Research Council of the National Academies, Deterrence and the Death Penalty (2012) (reviewing three decades of research and concluding that the research on the efect of capital punishment on homicide is not informative about whether capital punishments decreases, increases or has no efect on homicide rates). 30 The defnition of torture in the Convention Against Torture “does not include pain or sufering arising only from, inherent in or incidental to lawful sanctions.” CAT, supra note 3, at art. 1(1). 31 Facts About the Death Penalty, Death Penalty Information Center, https://deathpenaltyinfo.org/documents/FactSheet.pdf (last updated Sept. 17, 2018) (listing death penalty and non-death penalty states); The Death Penalty in 2016: Facts and Figures, Amnesty International (Apr. 11, 2017), https://www.amnesty.org/en/latest/news/2017/04/death- penalty-2016-facts-and-fgures/ (giving statistics on the death penalty’s use worldwide). 32 The Convention Against Torture provides: “Each State Party shall take efective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.” CAT, supra note 3, at art. 2(1). “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justifcation of torture.” CAT, supra note 3, at art. 2(2). “An order from a superior ofcer or a public authority may not be invoked as a justifcation of torture.” CAT, supra note 3, at art. 2(3). The Convention Against Torture also provides: “Each State Party shall ensure that all acts of torture are ofences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.” CAT, supra note 3, at art. 4(1); see also VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 11 been universally prohibited by international law and been seen by U.S. courts as a clear violation of the “law of nations.”33 Although judges seem to have no difculty identifying and condemning physical torture,34 they have been more reticent to recognize psychological forms of torture, at least in certain contexts.35 This article argues that twenty-frst century jurists need, at long last, to take psychological torture seriously. And in the death penalty
CAT supra note 3, at art. 4(2) (“Each State Party shall make these ofences punishable by appropriate penalties which take into account their grave nature.”). “CAT claims require the adjudicator to consider the possibility of future torture.” Saleh v. Sessions, No. 18-3212, 2018 WL 5304812, at *3 (6th Cir. Oct. 25, 2018) (citation omitted); accord Gomez-Domingo v. Sessions, No. 16-2669, 2018 WL 4492433, at *2 (2d Cir. Sept. 19, 2018) (“The agency must consider ‘all evidence relevant to the possibility of future torture’ . . . .”) (quoting 8 C.F.R. § 1208.16(c)(3) (2018)); Bartolome v. Sessions, 904 F.3d 803, 808 (9th Cir. 2018) (“During the reasonable fear determination, the asylum ofcer elicits ‘all information relating both to fear of persecution and fear of torture.’”) (quoting Reasonable Fear of Persecution & Torture Determinations, INS AOBT 8/6/2008, at *21, 2008 WL 7226112 (Aug. 6, 2008)). 33 E.g., Filártiga v. Peña-Irala, 630 F.2d 876, 884−85 (2d Cir. 1980) (“[O]fcial torture is now prohibited by the law of nations. The prohibition is clear and unambiguous, and admits of no distinction between treatment of aliens and citizens . . . . [I]nternational law confers fundamental rights upon all people vis-a-vis their own governments. While the ultimate scope of those rights will be a subject for continuing refnement and elaboration, we hold that the right to be free from torture is now among them.”). 34 “One of the reasons physical torture is constitutionally out of the question,” one legal commentator has noted, “is that the constitution protects bodily integrity against invasion and physical torture always involves such an invasion.” Jeremy Waldron, Torture, Terror and Trade-Offs: Philosophy for the White House 240 (2010) (citing the work of Seth Kreimer). In 2008, the Nebraska Supreme Court forthrightly declared the electric chair to be unconstitutional and torturous in nature. “[S]ome prisoners will be tortured during electrocutions,” the court ruled, noting that “unconsciousness and death are not instantaneous for many condemned prisoners” and that “[t]hese prisoners will, when electrocuted, consciously sufer the torture that high voltage electric current inficts on the human body.” State v. Mata, 745 N.W.2d 229, 270, 279 (Neb. 2008). 35 Sean Kevin Thompson, The Legality of the Use of Psychiatric Neuroimaging in Intelligence Interrogation, 90 Cornell L. Rev. 1601, 1625 (2005) (“Thus far, cases of mental torture tend to be limited to severe forms of mental sufering occasioned by actions such as mock execution or threatened dismemberment or castration.”) (citing War Crimes Documentation Cent., U.S. Dep’t of the Army, Report on Iraqi War Crimes (Desert Shield/Desert Storm) 8 (1992) (unclassifed version), reprinted in U.N. SCOR, 48th Sess., at 16−18, U.N. Doc. S/25441 (1993)). 12 Bessler context, that means recognizing capital prosecutions and death sentences for what they are: torturous threats of death.36 Death threats and mock executions, both of which infict trauma and severe pain and sufering, are already classifed as psychological torture,37 and many sources,38 including a U.N. guide to investigating torture,
36 Death threats are made in many contexts for a wide variety of reasons. E.g., U.S. Dep’t of State, 110th Congress, Country Reports on Human Rights Practices for 2007, 568, 2402, 2590, 2593, 2615, 2664, 2666 (Joint Comm. Print 2008) (describing anonymous death threats against journalists, human rights activists and a political cartoonist); Sara Schatz, Impact of Organized Crime on Murder of Law Enforcement Personnel at the U.S.-Mexican Border 83 (2014) (describing death threats by organized crime elements); The SAGE Encyclopedia of Terrorism 200 (Gus Martin ed., 2d ed. 2011) (“One of the most famous ‘death’ fatwas in modern times was the 1989 decree issued by the Ayatollah Ruhollah Khomeini, the then leader of the Islamic Republic of Iran, calling for the death of the British writer Salman Rushdie. The fatwa declared that Rushdie should be executed for having insulted Islam in his novel The Satanic Verses, published in late 1988.”). 37 See generally The Trauma of Psychological Torture (Almerindo E. Ojeda ed., 2008). Accord 1 Trauma Psychology: Issues in Violence, Disaster, Health, and Illness 37 (Elizabeth K. Carll ed., 2007) (“Psychological torture occurs in many forms, some of which are highly subtle, yet quite devastating.”); id. (citations omitted) (“Threats of death and mock executions convince the victim that he or she could certainly die at the hands of the torturer. Often torturers threaten to arrest, torture, or kill a victim’s family members, including children. Another devastating form of torture is to be forced to listen to others being tortured without being able to intervene, or to witness the torture of others, including family members and friends.”); Donna E. Arzt, The Lockerbie “Extradition by Analogy” Agreement: “Exceptional Measure” or Template for Transnational Criminal Justice?, 18 Am. U. Int’l L. Rev. 163, 206 n.143 (2002) (“Forms of psychological torture and ill-treatment include death threats and threats of abuse against the prisoner’s family . . . .”). 38 E.g., Handbook of Multicultural Assessment: Clinical, Psychological, and Educational Applications 168 (Lisa A. Suzuki & Joseph G. Ponterotto eds., 3d ed. 2008) (“Psychological torture may include, among other techniques, humiliation, degradation, death threats, mock executions, being forced to violate taboos, forced confessions, being forced to reveal intimate personal information, and being forced to witness the torture of others, including family members.”). Some of the “more commonly used psychological torture methods” have been listed as follows: “Threats,” “Mock executions,” “Isolation,” “Witnessing torture sessions,” “Sleep deprivation,” “Loud noise,” “Constant exposure to bright light,” “Total sensory deprivation,” “Sexual humiliation,” “Not allowed to wear clothes,” “Constant interrogation,” “Not allowed to wash or to go to toilet,” “Not allowed to be alone in the toilet,” “Excrement abuse.” Forensic Medicine: Clinical and Pathological Aspects 62 (Jason Payne- VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 13 list varieties of mental torture (e.g., “Threats of death, harm to family, further torture, imprisonment, mock executions”; “Threats of attack by animals, such as dogs, cats, rats or scorpions”; and “Forcing the victim to witness torture or atrocities being inficted on others.”).39 Part II of this article describes the illegality of death threats, highlighting how credible death threats are ordinarily treated as criminal, tortious, or torturous acts.40 The article then describes the process by which the death penalty is administered, laying out the collateral consequences for capital punishment of credible death threats already being classifed as illegal and as unlawful acts of torture. Part III thus details the process by which capital charges are leveled and death sentences are sought, obtained, and carried out. That section reveals that threats to execute ofenders are, in efect, nothing more than torturous threats of death, albeit ones made by state actors in a particular context. Finally, Part IV argues that, given the absolute and existing legal prohibition against psychological torture, lawyers and judges should no longer tolerate, or be complicit with, criminal justice systems that make use of death threats of whatever kind or nature. Because death threats are already properly classifed as torturous acts in multiple contexts, including
James et al. eds., 2003); see also id. (“Sham executions are an ultimate form of psychological torture and they are carried out with the utmost care to make them realistic. The victim is not always relieved when the soldiers fre blanks, but may end up wanting them to end his life.”). 39 Ofce of the United Nations High Commission for Human Rights (Geneva), Professional Training Series No. 8/Rev. 1, Istanbul Protocol: Manual on the Efective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment p. 29, ¶ 145 (2004). 40 See, e.g., Al Shimari v. CACI Premier Tech., Inc., 300 F. Supp. 3d 758, 781 (E.D. Va. 2018) (citing a 1997 report of the Committee Against Torture concluding that “threats, including death threats,” constitute torture); Jordan J. Paust et al., International Criminal Law 712, 866 (4th ed. 2013) (discussing the Committee Against Torture’s condemnation of “threats, including death threats,” as “either torture or cruel, inhuman or degrading treatment”). See also Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conficts, art. 75(2)(e), June 8, 1977, 1125 U.N.T.S. 3 (proscribing “[t]hreats to commit” “[m]urder”, “[v]iolence to the life, health, or physical or mental well-being of persons”, “[t]orture”, “[m]utilation”, “humiliating and degrading treatment and any form of indecent assault”); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conficts, art. 4(2)(h), June 8, 1977, 1125 U.N.T.S. 609 (proscribing threats to commit the same and additional conduct). 14 Bessler in the context of torture-murder prosecutions, the use of death threats as part of any crime and punishment regime is inconsistent with human rights principles.41 The article concludes that the death penalty should be classifed under the rubric of torture.
II. The Illegality and Torturous Nature of Threats of Death
A. Existing Legal Protections Against Death Threats Against Individuals Death threats may be either express or implied.42 Public ofcials sometimes receive illicit death threats,43 but state actors— as history shows—also sometimes make death threats or fail to protect prisoners or others following the making of death threats.44 In the latter circumstances, death threats can result in liability for government ofcials for which there is no qualifed immunity.45
41 This article provides an in-depth examination of an argument I have explored elsewhere. See generally Bessler, The Death Penalty as Torture, supra note 26. 42 United States v. Sogan, 388 F. App’x 521, 523 (6th Cir. 2010). 43 E.g., Texas Dep’t of Criminal Justice v. Levin, No. 03-15-00044-CV, 2007 WL 2302603, at *5 (Tex. Crim. App. May 25, 2017). 44 Prison ofcials are legally obligated to protect prisoners from harm. Handbook on Prisons 575 (Yvonne Jewkes ed., 2013) (“[I]t has long been accepted that the authorities have a duty to protect prisoners against third parties, such as fellow prisoners who might harm them.”). 45 Santiago v. Blair, 707 F.3d 984, 993 (8th Cir. 2013) (“[A] reasonable jury could conclude that Clubbs issued the death threats because Santiago had fled and pursued his excessive force grievance. Thus, Clubbs is not entitled to qualifed immunity regarding the retaliatory death threats.”); Irving v. Dormire, 519 F.3d 441, 449 (8th Cir. 2008) (“We conclude that, when viewed in the light of their retaliatory nature, their objectively credible basis, and their fear-inducing result, the death threats allegedly made by Brigance form the basis of an injury sufciently serious to implicate the Eighth Amendment.”); Rodriguez v. Secretary for Dep’t of Corr., 508 F.3d 611, 617 n.12 (11th Cir. 2007) (“[W]e conclude that the gang-related threats made on Rodriguez’s life, which were explicitly reported to prison ofcials, present a substantial enough risk of harm to trigger a prison ofcial’s Eighth Amendment duty to act; that is, to take some steps to investigate the likelihood that the reported threat will materialize and to take some steps aimed at reducing the likelihood of the risk.”); Odom v. S. Carolina Dep’t of Corr., 349 F.3d 765, 770 (4th Cir. 2003) (inmate-on-inmate assault, preceded by death threats, was sufciently substantial for Eighth Amendment purposes to survive summary judgment); see also Wright v. Fry, No. 1:18-cv- 00016-KGB/JTK, 2018 WL 5266845 *1 (E.D. Ark. Oct. 22, 2018) (citations omitted) (“While allegations of verbal threats, taunts, name calling, or the use of ofensive language alone do not support claims for use of excessive VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 15
For example, in Jones v. Carroll,46 a former inmate, Charles Jones, brought a section 198347 claim for violation of his civil rights against prison employees, alleging that they failed to protect him from an attack by another inmate, Anibal Melendez. The federal district court determined that a genuine issue of material fact existed as to whether Jones told prison ofcials about violent threats he received from Melendez, whom had threatened to kill Jones.48 In that case, the federal district court ruled that “a reasonable factfnder could conclude, based on plaintif’s evidence,” that the “State defendants . . . subjectively knew of the substantial risk of harm that Melendez posed to plaintif based on Melendez’s death threats.”49 Death threats are illegal and extremely shocking and outrageous acts,50 and they are frequently used by criminals or
force, an exception is recognized ‘when the state ofcial engaged in a brutal and wanton act of cruelty even though no physical harm was sufered.’”); Irving v. Wells, No. 1:18-CV-47 JMB, 2018 WL 2868927, at *2 (E.D. Mo. June 11, 2018) (“Although verbal threats are normally insufcient to violate the Constitution, the Eighth Circuit has concluded that death threats . . . may form the basis of an injury sufciently serious to implicate the Eighth Amendment.”) (citing Irving, 519 F.3d at 448−49); Titus v. Does #10-20, No. 17-cv-1315-MJR, 2018 WL 558532, at *3 (S.D. Ill. Jan. 25, 2018) (citations omitted) (“Courts must apply an objective standard to determine whether a particular threat, given all the circumstances, may amount to a constitutional violation. The pertinent inquiry is whether a ‘reasonable’ victim would fear for his or her life or safety as a result of the threat; not whether this plaintif experienced actual fear.”). 46 Jones v. Carroll, 628 F. Supp. 2d 551 (D. Del. 2009). 47 Title 42 U.S.C. § 1983 (2017) allows prisoners to seek redress for the deprivation, under color of state law, of rights guaranteed by the U.S. Constitution or federal laws. Perry v. Garcia, No. 09cv622 LAB (RBB), 2010 WL 3633042, at *12 (S.D. Cal. July 16, 2010); Norton v. Garro, 957 F. Supp. 1067, 1070 (E.D. Wis. 1997); Webb v. Hopkins, No. 88 CV 2501, 1989 WL 15814, at *1 (E.D.N.Y. Feb. 9, 1989). 48 Jones, 628 F. Supp. 2d at 553−55. 49 Id. at 560. As that court further ruled: “The court fnds that the failure to protect an inmate from another inmate who had issued continuing death threats poses an objective risk of excessive harm to the threatened inmate.” Id. at 560 n.9. 50 E.g., Neumeyer v. Wawanesa General Ins. Co., No. 14cv181-MMA (RBB), 2015 WL 1924981, at *24 (S.D. Cal. Apr. 24, 2015) (“death threats constitute criminal behavior”); Baird v. Gotbaum, 662 F.3d 1246, 1249 (D.C. Cir. 2011) (“Of course death threats are extreme . . . .”); see also Cal. Penal Code § 422 (2011) (making death threats a crime); U.S.S.G. § 2B3.1(b) (2)(F) (2016) (providing for the upward adjustment of a defendant’s base ofense level for robbery by two levels “if a threat of death was made”); United States v. Fontanez, No. 17-13944, 2018 WL 3239249, at *2 n.3 16 Bessler totalitarian or repressive regimes for illicit purposes.51 Death threats, it has been held, are completely unjustifed and unjustifable,52 and because of their nature, they can themselves be evidence of aggressive or murderous intent.53 The seriousness of death threats is even refected in the application of evidentiary rules. As the U.S. Court of Appeals for the Second Circuit emphasized in a recent case:
It is long settled that the admissibility of death threats made by a defendant is evaluated in accordance with the ordinary principles of Federal Rule of Evidence 403. At the same time, the potential for unfair prejudice is so great that Rule 403’s balancing test permits admission of death threat evidence only if there is clear need for the evidence and it serves an important purpose.54
As the Second Circuit ruled in that case: “It is hard to deem harmless the erroneous admission of death threat evidence. In this instance, the evidence was toxic.”55
(11th Cir. June 3, 2018) (noting that the defendant “received a two-level enhancement for making a threat of death” pursuant to U.S.S.G. § 2B3.1(b) (2)(F) (2016)). 51 Stephen J. Morewitz, Death Threats and Violence: New Research and Clinical Perspectives 101 (2008) (citation omitted). 52 See Schanze v. Schanze, No. A15-0231, 2015 WL 8548626, at *3 n.2 (Minn. Ct. App. Dec. 14, 2015) (“We categorically reject Daniel’s argument that the harm threatened was not imminent because it was contingent on Danielle having an extramarital afair. To adopt this argument could be read to suggest that an extramarital afair somehow justifes death threats. The unfortunate occurrence of an extramarital afair does not ever justify death threats.”). 53 Hernandez v. Stainer, No. 1:11-cv-00489-AWI-JLT, 2013 WL 5773041, at *16 (E.D. Cal. Oct. 24, 2013) (“[W]here both perpetrators made death threats against the victims, each assisting the other in what appears to be a highly coordinated assault, and where the shooting does not appear to have been either an accident or impulse by Ramirez, but rather part of a jointly understood and planned strategy of attack, the evidence is certainly sufcient to support a fnding by reasonable jurors that Petitioner shared the same homicidal mind state as Ramirez.”); People v. Gamble, 899 N.Y.S.2d 207, 209 (N.Y. App. Div. 2010) (“Defendant’s pattern of aggressive conduct toward the victims, including specifc death threats and menacing with a handgun, was highly probative of motive and intent . . . .”). 54 United States v. Morgan, 786 F.3d 227, 229 (2d Cir. 2015) (citation omitted). 55 Id. at 234. See also United States v. Tarantino, No. 08-CR-0655 (JS), 2012 VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 17
Death threats are not constitutionally protected speech.56 “[T]he First Amendment,” the U.S. Supreme Court has ruled, “permits a State to ban a ‘true threat.’”57 As the Supreme Court has explained: “‘[T]rue threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”58 “Intimidation in the constitutionally proscribable sense of the word,” the Court emphasized, “is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”59 Thus, the constitutional rights of someone making a true threat are not violated if an adverse action (e.g., a criminal prosecution or the termination of employment) follows the making of that threat.60
WL 1458197, at *4 (E.D.N.Y. Apr. 27, 2012) (citations omitted) (“Death threats, like other evidence, are subject to the usual Rule 403 balancing test. Nevertheless, courts are mindful that ‘the potential prejudice from death threats may be great’ and may tend to ‘exclude death threats more frequently than other evidence.’”). 56 United States v. Walker, 665 F.3d 212, 227 (1st Cir. 2011) (“The law is crystal clear that threats are not constitutionally protected speech.”). See Santiago v. Blair, 707 F.3d 984, 992 (8th Cir. 2013) (“[A] reasonable jury could fnd that threats of death, issued by a correctional ofcer tasked with guarding a prisoner’s segregated cell, would chill a prisoner of ordinary frmness from engaging in the prison grievance process . . . .”); Van Deelen v. Johnson, 497 F.3d 1151, 1157 (10th Cir. 2007) (“[A]llegations of physical and verbal intimidation, including a threat by a deputy sherif to shoot him if he brought any more tax appeals, would surely sufce under our precedents to chill a person of ordinary frmness from continuing to seek redress for (allegedly) unfair property tax assessments.”). 57 Virginia v. Black, 538 U.S. 343, 359 (2003) (quoting Watts v. United States, 394 U.S. 705, 708 (1969) (per curiam)). 58 Id. 59 Id. at 360; see also Baumgartner v. Eppinger, No. 1:10CV2810, 2013 WL 5563913, at *17 (N.D. Ohio, Sept. 27, 2013) (citations omitted) (“The Seventh Circuit, in a case involving 18 U.S.C. § 876, stated that, in order for the government to establish a ‘true threat,’ it must demonstrate that a reasonable person would foresee that the statement at issue would be interpreted by the recipient as ‘a serious expression of an intention to infict bodily harm upon,’ or to kill, that person. The court emphasized the importance of the context of the statement in determining whether it was a true threat or merely political hyperbole.”). 60 See, e.g., Smith v. N.Y.C. Dep’t of Educ., 109 A.D.3d 701, 702−03 (N.Y. App. Div. 2013) (holding that disciplinary proceeding and ultimate discipline imposed against tenured teacher, that is, termination of employment, did not violate teacher’s right to free speech under the First Amendment, where teacher’s death threats against initial arbitrator in a prior disciplinary 18 Bessler
That is because it is improper to threaten someone with death. The Supreme Court, in fact, has made clear that a victim’s fear, if reasonable or grounded in reality, mandates that threatening speech lose its First Amendment protection.61
B. Death Threats, Persecution, and the U.S. Constitution’s Eighth Amendment The U.S. Constitution’s Eighth Amendment imposes a duty on prison ofcials “to protect prisoners from violence at the hands of
proceeding were true threats not entitled to First Amendment protection, and they did not implicate matters of public concern); Misiak v. Boening, No. C09-0716-JCC, 2010 WL 55857, at *4−5 (W.D. Wash. Jan. 5, 2010) (“The state courts neither misinterpreted nor misapplied Supreme Court authority in determining that prohibiting inmates from making death threats is related to the legitimate penological interest of protecting correctional ofcers.”). A person subjected to a plausible and imminent threat of serious injury or death is entitled to the law’s protection—a principle that, as a general matter, applies equally to inmates. Valdez v. City of New York, No. 11 Civ. 05194(PAC)(DF), 2013 WL 8642169, at *11 (S.D.N.Y. Sept. 3, 2013) (“[C]ourts have consistently required plaintifs in inmate-safety cases to allege that they either sufered a physical injury or were subject to an imminent threat of serious physical injury in circumstances making the threat plausible.”). Of course, an inmate is legally protected from harm only if the threat is real. See Chalif v. Spitzer, No. 9:05-CV-1355 (LEK/DEP), 2008 WL 1848650, at *9 (N.D.N.Y. Apr. 23, 2008) (fnding no substantial risk of serious harm where plaintif alleged that he was “subjected to psychological torture by imminent threat of death” but complaint did not include “any incident[] whereby he was assaulted by any fellow inmates, or that such an assault was threatened and imminent”). See also Richardson v. Castro, No. 97-CV-3772 (SJ), 1998 WL 205414, at *5 (E.D.N.Y. Apr. 24, 1998) (citation omitted) (“[V]erbal threats do not violate the constitution ‘unless accompanied by physical force or the present ability to efectuate the threat.’”). 61 Joshua Azriel, First Amendment Implications for E-Mail Threats: Are There Any Free Speech Protections?, 23 J. Marshall J. Computer & Info. L. 845, 846 (2005) (citation omitted) (“The U.S. Supreme Court recently decided a case where the victim’s fear mandates that threatening speech lose its First Amendment protection. The Court, in a 6-3 decision, ruled that cross burning is not protected speech when it is used to intimidate an individual or a group of people. The salient part of the Court’s ruling is that intimidation is a true threat, and a prohibition on intimidating threats protects people from a fear of violence. The Court stated that the speaker does not actually have to carry out the threat for it to be illegal. This follows the reasoning of several lower court decisions that use a reasonable person standard to determine the efcacy of a threat.”). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 19 other prisoners”62 and prison guards.63 The Eighth Amendment, in fact, has already been found to protect inmates from death threats.64 One federal district court articulated the applicable standard: “Courts must apply an objective standard to determine whether a particular threat of death or harm, given all the circumstances, may amount to a constitutional violation.”65 “The pertinent inquiry,” that court stressed, “is whether a ‘reasonable’ victim would fear for his or her life as a result of the threat; not whether this plaintif experienced actual fear.”66 In that case, the court observed that “repeated threats to beat and kill Plaintif and to have ofcers at his next prison ‘get’ him” may have “violated Plaintif’s constitutional rights.”67 “These actions,” the court concluded, taking note of how the inmate was forced to strip and spread his buttocks for an inordinate length of time, were calculated “to strike fear into Plaintif, to humiliate him, and to emphasize that the Defendants had the power to harm and
62 Farmer v. Brennan, 511 U.S. 825, 833 (1994) (citation omitted). 63 See Hudson v. McMillian, 503 U.S. 1 (1992) (a correctional ofcer’s use of excessive physical force against a prisoner may, in appropriate circumstances, constitute a cruel and unusual punishment even though the prison does not sufer either “signifcant injury” or “serious injury”); McClanahan v. Butler, No. 16-cv-340-SMY, 2016 WL 4154910, at *2 (S.D. Ill. Aug. 5, 2016) (“The intentional use of excessive force by prison guards against an inmate without penological justifcation constitutes cruel and unusual punishment in violation of the Eighth Amendment and is actionable under § 1983.”); see also 42 U.S.C. § 1997e(e) (2012) (“No Federal civil action may be brought by a prisoner confned in a jail, prison or other correctional facility for mental or emotional injury sufered while in custody without a prior showing of physical injury. . . .”); Johnson v. Bradford, 72 F. App’x 98, 99 (5th Cir. 2003) (“Johnson’s challenge to the defendants’ alleged death threats does not present a claim of physical injury and therefore fails to state an excessive force claim.”). 64 Dobbey v. Ill. Dep’t of Corr., 574 F.3d 443, 445 (7th Cir. 2009) (citations omitted) (“[A] threat, which is how the plaintif interpreted the incident, can rise to the level of cruel and unusual punishment.”); id. (“‘Mental torture is not an oxymoron, and has been held or assumed in a number of prisoner cases to be actionable as cruel and unusual punishment,’ . . . — imagine falsely informing a prisoner that he has been sentenced to death.”); Lamon v. Brown, No. 12-cv-1176-JPG-DGW, 2013 WL 6508490, at *2 (S.D. Ill. Dec. 12, 2013) (citation omitted) (“[T]hreats or mental torture can rise to the level of cruel and unusual punishment.”). 65 Bardo v. Stolworthy, No. 15-cv-1193-JPG, 2015 WL 7713710, at *8 (S.D. Ill. Nov. 30, 2015) (citing Dobbey v. Ill. Dep’t of Corr., 574 F.3d 443, 445 (7th Cir. 2009)). 66 Id. 67 Id. 20 Bessler kill him.”68 American jurists have long classifed verbal threats as potentially violative of the Eighth Amendment if accompanied by extreme psychological torment or harm.69 For instance, in Babcock v. White,70 the Seventh Circuit held that “the Constitution does not countenance psychological torture merely because it fails to infict physical injury.”71 Likewise, in Northington v. Jackson,72 an inmate, Craig Northington, fled a civil rights action against sherif’s deputies, corrections ofcers, and a county sherif’s department alleging that law enforcement ofcers stopped him on his way from the Denver County Jail to his community placement worksite.73 In that case, Northington alleged that a captain put a revolver to his head and threatened to kill him.74 In its analysis, the Tenth Circuit, noting that Northington “alleged psychological injury as a result of the alleged death threat,”75 explicitly ruled: “Under these circumstances, if true, it could be ‘malicious and sadistic’ for a corrections ofcer to place a revolver to a prisoner’s head and threaten to pull the trigger.”76 “Mr. Northington’s allegations, accepted as true, may state a violation of
68 Id. 69 Cummings v. Harrison, 695 F. Supp. 2d 1263, 1272 (N.D. Fla. 2010); see also id. at 1273 (“[D]espite the general principle that verbal threats are insufcient to state a claim, some cases have recognized that verbal threats to kill an inmate do present an Eighth Amendment claim.”). In Cummings, the court ruled: “The threats as presented in Plaintif’s afdavit reveal sufcient psychological harm to survive. This is especially true as the verbal threats are alleged to have been continuing and combined with physical assaults.” Id.; see also Gomez v. Birondo, No. 91-15731, 1992 WL 153007, at *2 (9th Cir. July 6, 1992) (“Gomez’s allegations of excessive force combined with death threats arguably state a[n] [E]ighth [A]mendment claim.”); Johnson v. Glick, 481 F.2d 1028, 1029−30, 1033 (2d Cir. 1973) (fnding that a prisoner stated an Eighth Amendment claim by alleging that an ofcer struck him and threatened to kill him), cert. denied, 414 U.S. 1033 (1973); cf. United States v. Gore, 592 F.3d 489, 491−92 (4th Cir. 2010) (the government “concedes that some minimal right of self-defense must be available to inmates charged under 18 U.S.C. § 111 because disabling an inmate entirely from protecting himself from wanton, unlawful aggression threatening death or serious bodily injury would violate the Eighth Amendment’s prohibition of cruel and unusual punishments”). 70 Babcock v. White, 102 F.3d 267 (7th Cir. 1996). 71 Id. at 273. 72 Northington v. Jackson, 973 F.2d 1518 (10th Cir. 1992). 73 Id. at 1520, 1522. 74 Id. at 1522. 75 Id. at 1524. 76 Id. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 21 the Eighth Amendment,” the Tenth Circuit determined.77 In immigration and asylum cases, prior death threats are used to establish past persecution or a well-founded fear of future persecution.78 For instance, in Hernandez-Avalos v. Lynch,79 the Fourth Circuit held that a native and citizen of El Salvador, Maydai
77 Id. at 1525. In its ruling, the Tenth Circuit distinguished Collins v. Cundy, 603 F.2d 825 (10th Cir. 1979), in which the Tenth Circuit had previously ruled that a sherif’s “idle threat to hang a prisoner” did not give rise to a section 1983 claim. Northington, 973 F.2d at 1524 (citing Collins, 603 F.2d at 827); see also Clark v. Ellis, No. 4-11-cv-00135-KGB-JTK, 2012 WL 3595973, at *4 (E.D. Ark. May 24, 2012) (citations omitted) (“[M]ere verbal threats made by a state-actor do not constitute a § 1983 claim . . . . [T]he constitution does not protect against all intrusions on one’s peace of mind. Fear of emotional injury which results solely from verbal harassment or idle threats is generally not sufcient to constitute an invasion of an identifed liberty interest.”). 78 Death threats are a frequent staple of persecution claims. E.g., Tairou v. Whitaker, No. 17-1404, 2018 WL 6252780, at *4 (4th Cir. Nov. 30, 2018) (“Because Tairou received multiple, explicit threats of death both during and after the village gathering, the BIA’s conclusion as to past harm contravenes our express and repeated holding that the ‘threat of death’ qualifes as persecution.”); Lomtyeva v. Sessions, 704 F. App’x 677, 681 (9th Cir. 2017) (citation omitted) (“[W]hile ‘death threats alone can constitute persecution,’ the context in which the threat is made ultimately determines its persecutory impact[.]”); Godoy v. Holder, 434 F. App’x 634, 635 (9th Cir. 2011) (citations omitted) (“[D]eath threats, when combined with other factors present here (including the murders of family members and physical confrontations with persecutors), may constitute persecution.”); Ramirez- Recinos v. U.S. Att’y Gen., 406 F. App’x 457, 459 (11th Cir. 2010) (“[W]e upheld a persecution claim where an alien received numerous death threats, was dragged by her hair out of her car and beaten, had her groundskeeper tortured and killed by attackers looking for her, and was further kidnapped and beaten.”); Kumar v. Gonzales, 444 F.3d 1043, 1055 (9th Cir. 2006) (holding that threats to kill individual if he returned to India “require a fnding that he has met his burden of showing a well-founded fear of future persecution”); Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000) (“[M]enacing death threats can constitute a primary part of a past persecution claim, particularly where those threats are combined with confrontation or other mistreatment.”); Sackie v. Ashcroft, 270 F. Supp. 2d 596, 602 (E.D. Pa. 2003) (“Given Mr. Sackie’s undisputed and uncontroverted testimony that he was threatened with imminent death on numerous occasions, frequently given mind altering substances and sufered cuts to his back and arms, we must fnd that he has met his burden of proving that he was tortured in his native country.”). Cf. Pabon v. U.S. Att’y Gen., 704 F. App’x 903, 907 (11th Cir. 2017) (“Being intentionally shot at is sufciently extreme to establish persecution, even if the attack is unsuccessful, and there is no strict physical harm requirement to establish persecution.”). 79 Hernandez-Avalos v. Lynch, 784 F.3d 944 (4th Cir. 2015). 22 Bessler
Hernandez-Avalos (“Hernandez”), had sufciently proven past persecution and a well-founded fear of future persecution based on a gang’s death threats.80 In 2007, members of the Mara 18 gang had killed the cousin of Hernandez’s husband for refusing to join the gang.81 Hernandez had not witnessed the murder, but she later identifed the body and took it home for burial.82 After that burial, gang members had come to her home and threatened to kill her if she fngered the gang members responsible for the murder.83 Within a few months, Hernandez was threatened with death again when Mara 18 gang members returned to her home and put a gun to her head after she told them her 12-year-old son would not join the gang.84 After Hernandez was similarly threatened with death yet a third time by gang members, she fed to the United States with the help of a smuggler.85 In Hernandez-Avalos, the Fourth Circuit took note of the death threats, emphasizing that its jurisprudence made clear that “the threat of death qualifes as persecution.”86 “Because Hernandez credibly testifed that she received death threats from Mara 18,” the Fourth Circuit determined, “she has proven that she has a well-founded fear of future persecution were she to return to El Salvador.”87 “[I]n this case,” the Fourth Circuit stressed, “Mara 18 threatened Hernandez in order to recruit her son into their ranks, but they also threatened Hernandez, rather than another person, because of her family connection to her son.”88 Acknowledging the corruption and the power of gangs within Salvadoran prisons and El Salvador’s judicial system,89 and fnding that Hernandez had established her eligibility for asylum, the Fourth Circuit concluded that Hernandez’s credible testimony “is legally sufcient under the circumstances present here to establish that the Salvadoran authorities are unable or unwilling to protect her from the gang members who threatened her.”90 In
80 Id. at 946−53. 81 Id. at 947. 82 Id. 83 Id. 84 Id. 85 Id. 86 Id. at 949. 87 Id. 88 Id. at 950. 89 Id. at 952−53. 90 Id. at 953. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 23 reality, death threats have long been a problem in El Salvador,91 as they have been in many other countries.92 American courts have wrestled on more than one occasion with cases involving death threats made against inmates. For example, in Chandler v. D.C. Department of Corrections,93 a threat was made against an inmate’s life and the inmate alleged it had caused him “psychological damage” and that his fear that the threat would be carried out caused him to sufer “[n]ightmares and [to] wak[e] up in a frantic sweat.”94 In that case, the U.S. Court of Appeals for the District of Columbia began its analysis by stating: “We note at the outset that verbal threats, without more, may be sufcient to state a cause of action under the Eighth Amendment.”95 The Court of Appeals then concluded that, “[d]epending on the gravity of the fear,” “the credibility of the threat,” and the targeted person’s “psychological condition,” a death threat “could have caused more than de minimis harm and therefore could have been sufcient to state a claim of excessive use of force.”96 “These issues,” the Court of Appeals ruled, reversing the district court’s dismissal of
91 See, e.g., Lawrence Michael Ladutke, Freedom in Expression in El Salvador: The Struggle for Human Rights and Democracy 58 (2004); Thomas L. Pearcy, The History of Central America 110 (2006). 92 Human Rights in Developing Countries: Yearbook 1997 196−97 (Hugo Stokke et al. eds.) (discussing death threats in Guatemala); Silvio Waisbord, Watchdog Journalism in South America: News, Accountability, and Democracy 60 (2000) (discussing death threats in South America against journalists). 93 Chandler v. D.C. Dep’t of Corr., 145 F.3d 1355 (D.C. Cir. 1998). 94 Id. at 1359. 95 Id. at 1360. In support of that proposition, the U.S. Court of Appeals for the District of Columbia cited Justice Harry Blackmun’s concurrence in Hudson v. McMillian, 503 U.S. 1 (1992). In that concurrence, Justice Blackmun observed: “It is not hard to imagine infictions of psychological harm—without corresponding physical harm—that might prove to be cruel and unusual punishment. . . . [T]he Eighth Amendment prohibits the unnecessary and wanton infiction of ‘pain,’ rather than ‘injury.’ ‘Pain’ in its ordinary meaning surely includes a notion of psychological harm.” Id. at 16 (Blackmun, J., concurring); see also id. at 17 (Blackmun, J., concurring) (“Psychological pain often may be clinically diagnosed and quantifed through well-established methods, as in the ordinary tort context where damages for pain and sufering are regularly awarded.”). The U.S. Supreme Court, in a recent Eighth Amendment case, has itself found that “it is proper to consider . . . psychiatric and professional studies.” Hall v. Florida, 134 S. Ct. 1986, 1993 (2014). 96 Chandler, 145 F.3d at 1361. 24 Bessler the inmate’s Eighth Amendment claim, “cannot be resolved without more factual development.”97 Similarly, in Burton v. Livingston,98 an inmate alleged that an ofcer pointed a gun at him and threatened to shoot him. The ofcer allegedly asked the inmate to “run” so he could “blow” the inmate’s “Goddamn brains out.”99 In that case, the ofcer reportedly used racial epithets and, through his words, tried “to scare” the inmate into running, potentially allowing the ofcer to shoot the inmate in the back and then later falsely claim that the inmate was trying to escape.100 As the Eighth Circuit described the lawsuit’s allegations: “The complaint states that Sgt. Livingston pointed a lethal weapon at the prisoner, cocked it, and threatened him with instant death. This incident occurred immediately after the prisoner had given testimony against another guard in a § 1983 action.”101 Faced with those allegations, the Eighth Circuit ruled: “The complaint describes in plain words a wanton act of cruelty which, if it occurred, was brutal despite the fact that it resulted in no measurable physical injury to the prisoner.”102 “The day has passed,” the Eighth Circuit held, “when an inmate must show a court the scars of torture in order to make out a complaint under § 1983.”103 As the Eighth Circuit emphasized: “We hold that a prisoner retains at least the right to be free from the terror of instant and unexpected death at the whim of his allegedly bigoted custodians.”104
97 Id. (quoting Farmer v. Brennan, 511 U.S. 825, 843 (1994)). As the Court of Appeals stressed: “[T]he risk that Corporal Brooks’s threat might be carried out, if left unaddressed (a matter upon which the district court made no fndings), could amount to ‘a sufciently substantial “risk of serious damage to [Chandler’s] future health”’ to be actionable as an unconstitutional condition of confnement.” Id. (quoting Farmer, 511 U.S. at 843). 98 Burton v. Livingston, 791 F.2d 97, 99−100 (8th Cir. 1986). 99 Id. at 99. 100 Id. 101 Id. at 100. “Apparently,” the Eighth Circuit reported, “another guard who was present took the threat seriously enough to step between the prisoner and Sgt. Livingston.” Id. 102 Id. 103 Id. 104 Id. The Eighth Circuit further ruled: “So far as we can tell at this early stage of the case, the guard’s conduct was not motivated by the necessity of correcting a rebellious inmate or by legitimate concerns for institutional security. Neither is it an instance of rough language which resulted only in bruised feelings.” Id. “This is rather,” the Eighth Circuit emphasized, “a complaint that a prison guard, without provocation, and for the apparent purpose of retaliating against the prisoner’s exercise of his rights in VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 25
The case of Hudspeth v. Figgins105 is also illustrative. In that case, a prisoner, James Hudspeth, sued two prison guards who had allegedly impaired his right of access to the courts, with one correctional ofcer reportedly threatening to transfer Hudspeth to a work detail where the inmate, per the threat, would be shot by “accident.”106 In that case, the Fourth Circuit ruled: “A threat of physical harm to a prisoner if he persists in his pursuit of judicial relief is as impermissible as a more direct means of restricting the right of access to the courts.”107 “It is enough,” the Fourth Circuit explained, pointing out that the inmate need not have actually succumbed to the threat, “that the threat was intended to impose a limitation upon the prisoner’s right of access to the court and was reasonably calculated to have that efect.”108 If Hudspeth was intentionally placed “in fear for his life if he pressed his court actions,” the Fourth Circuit added, “that would infict such sufering as to amount to unconstitutional punishment.”109 “The life of a prisoner is a dreary one of sufering,” it concluded, “but the Constitution prohibits the infiction upon a prisoner of unnecessary sufering which is inconsistent with contemporary standards of decency.”110
petitioning a federal court for redress, terrorized him with threats of death.” Id. at 100−01. “Under the circumstances of this incident,” the Eighth Circuit concluded, “the guard’s actions, if proved, were a violation of Mr. Burton’s rights under the First Amendment and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment.” Id. at 101; see also Shamsud’Diyn v. Moyer, No. ELH-17-3271, 2018 WL 3022660, at *9 (D. Md. June 18, 2018) (“[A] ‘complaint that a prison guard, without provocation, and for the apparent purpose of retaliating against the prisoner’s exercise of his rights in petitioning a federal court for redress, terrorizing him with threats of death,’ would be sufcient to state a claim.”) (quoting Burton, 791 F.2d at 100−01)); Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322, 1346 (N.D. Ga. 2002) (“Mental torture consists of ‘prolonged mental harm caused by or resulting from: the intentional infiction or threatened infiction of severe physical pain or sufering; . . . the threat of imminent death; or the threat that another person will imminently be subjected to death, [or] severe physical pain or sufering.’ As set out above, plaintifs noted in their testimony that they feared that they would be killed by Vuckovic during the beatings he inficted or during games of ‘Russian roulette.’ Each plaintif continues to sufer long-term psychological harm as a result of the ordeals they sufered at the hands of defendant and others.”). 105 Hudspeth v. Figgins, 584 F.2d 1345 (4th Cir. 1978). 106 Id. at 1347. 107 Id. at 1348. 108 Id. 109 Id. 110 Id. The U.S. Supreme Court has been using the “evolving standards of 26 Bessler
A provision of federal law put in place as part of the Prison Litigation Reform Act111 regulates the ability of inmates to bring claims for compensatory damages for prison conditions that relate to an inmate’s mental health. According to the provision of that law now codifed at 42 U.S.C. § 1997e(e):
No Federal civil action may be brought by a prisoner confned in a jail, prison, or other correctional facility, for mental or emotional injury sufered while in custody without a prior showing of physical injury or the commission of a sexual act (as defned in section 2246 of Title 18).112
But that law plainly does not allow government actors to psychologically torture prisoners with impunity.113 As the Seventh Circuit wrote in rejecting the Attorney General’s contention that 42 U.S.C. § 1997e(e) makes a showing of physical injury a fling prerequisite for every civil rights lawsuit involving mental or emotional injury: “This contention if taken to its logical extreme would give prison ofcials free reign to maliciously and sadistically infict psychological torture on prisoners, so long as they take care not to infict any physical injury in the process.”114
decency” test since 1958 to gauge what violates the Eighth Amendment’s Cruel and Unusual Punishments Clause. Trop v. Dulles, 356 U.S. 86, 101 (1958) (determining that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society”). 111 42 U.S.C. § 1997e (2013). 112 Id. § 1997e(e). 113 Scarver v. Litscher, 371 F. Supp. 2d 986, 997−98 (W.D. Wis. 2005) (citation omitted) (“A plaintif who has sufered psychological torture but not physical injury may still obtain nominal or punitive damages.”). 114 Calhoun v. DeTella, 319 F.3d 936, 940 (7th Cir. 2003). As the Seventh Circuit determined in that case: “As we have observed before and reemphasize here, ‘[i]t would be a serious mistake to interpret section 1997e(e) to require a showing of physical injury in all prisoner civil rights suits.’ On several occasions we have explained that § 1997e(e) may limit the relief available to prisoners who cannot allege a physical injury, but it does not bar their lawsuits altogether. As its title suggests, § 1997e(e) is a ‘limitation on recovery.’ Accordingly, physical injury is merely a predicate for an award of damages for mental or emotional injury, not a fling prerequisite for the federal civil action itself.” Id.; see also id. at 941 (“Although § 1997e(e) would bar recovery of compensatory damages ‘for’ mental and emotional injuries sufered, the statute is inapplicable to awards of nominal or punitive VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 27
As a general matter, the Eighth Amendment thus ordinarily protects inmates from harm, further requiring that they be clothed, fed, sheltered, and provided with adequate health care.115 “The Eighth Amendment,” as one federal district court put it, “requires the government ‘to provide medical care for those whom it is punishing by incarceration.’”116 And the Eighth Amendment has long been read to require the provision of mental health services for inmates117 and to bar torture.118 For example, in Estelle v. Gamble,119 the U.S. Supreme Court determined that “the primary concern of the drafters” of the Eighth Amendment was “to proscribe ‘torture[s]’ and other ‘barbar[ous]’ methods of punishment.”120 In that 1976 decision, the Supreme Court went on to declare: “Our more recent cases, however, have held that Amendment proscribes more than
damages for the Eighth Amendment violation itself.”). 115 Brown v. Plata, 563 U.S. 493, 510 (2011) (“Prisoners are dependent on the State for food, clothing, and necessary medical care.”); id. at 511 (“If government fails to fulfll this obligation, the courts have a responsibility to remedy the resulting Eighth Amendment violation.”); id. at 538 (“Establishing the population at which the State could begin to provide constitutionally adequate medical and mental health care, and the appropriate time frame within which to achieve the necessary reduction, requires a degree a judgment.”); Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citations omitted) (“[P]rison ofcials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must ‘take reasonable measures to guarantee the safety of the inmates’ . . . .”). 116 Scarver, 371 F. Supp. 2d at 998 (quoting Snipes v. DeTella, 95 F.3d 586, 590 (7th Cir. 1996)). 117 Meriwether v. Faulkner, 821 F.2d 408, 413 (7th Cir. 1987) (citations omitted) (“Courts have repeatedly held that treatment of a psychiatric or psychological condition may present a ‘serious medical need’ under the Estelle formulation.”); King v. Litscher, No. 17-CV-201-JPS, 2017 WL 4334133, at *3 (E.D. Wis. Sept. 28, 2017) (“It is well settled that the Eighth Amendment protects the mental health of prisoners no less than their physical health.”); Green v. Grams, No. 10-cv-745-slc, 2011 WL 5151520, at *3 (W.D. Wis. Oct. 28, 2011) (same). 118 Estelle v. Gamble, 429 U.S. 97, 102 (1976) (noting that “the primary concern of the drafters” of the Eighth Amendment “was to proscribe ‘torture[s]’ and other ‘barbar[ous]’ methods of punishment”); see also Taylor v. Crawford, 487 F.3d 1072, 1082 (8th Cir. 2007) (“The Eighth Amendment prohibits the unnecessary and wanton infiction of pain through torture, barbarous methods, or methods resulting in a lingering death.”); Snipes v. DeTella, 95 F.3d 586, 590 (7th Cir. 1996) (“[R]ecent Supreme Court decisions have held that the Eighth Amendment proscribes more than just ‘physically barbarous punishments.’”). 119 Estelle v. Gamble, 429 U.S. 97 (1976). 120 Id. at 102. 28 Bessler physically barbarous punishments.”121 “We therefore conclude,” the Court held, “that deliberate indiference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infiction of pain,’ proscribed by the Eighth Amendment.”122 A failure to provide adequate psychiatric and mental health care services to inmates is deliberately indiferent to their serious medical needs and thus constitutes an Eighth Amendment
121 Id. As the Court in Estelle v. Gamble put it: “The Amendment embodies ‘broad and idealistic concepts of dignity, civilized standards, humanity, and decency . . . ,’ Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir. 1968), against which we must evaluate penal measures. Thus, we have held repugnant to the Eighth Amendment punishments which are incompatible with ‘the evolving standards of decency that mark the progress of a maturing society.’” Id. In Jackson v. Bishop, the Eighth Circuit—in an opinion authored by then - Judge Harry Blackmun—concluded in 1968: “[W]e have no difculty in reaching the conclusion that the use of the strap in the penitentiaries of Arkansas is punishment which, in this last third of the 20th century, runs afoul of the Eighth Amendment; that the strap’s use, irrespective of any precautionary conditions which may be imposed, ofends contemporary concepts of decency and human dignity and precepts of civilization which we profess to possess; and that it also violates those standards of good conscience and fundamental fairness enunciated by this court . . . .” Jackson, 404 F.2d at 579. 122 Estelle, 429 U.S. at 104−05 (citation omitted); see also id. (“This is true whether the indiference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Regardless of how evidenced, deliberate indiference to a prisoner’s serious illness or injury states a cause of action under § 1983.”). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 29 violation.123 As the Second Circuit put it in Langley v. Coughlin,124 “the basic legal principle is clear and well established . . . that when incarceration deprives a person of reasonably necessary medical care (including psychiatric or mental health care) which would be available to him or her if not incarcerated, the prison authorities must provide such surrogate care.”125 In 2011, the U.S. Supreme Court itself considered an Eighth Amendment case involving prison overcrowding and inadequate provision of services. In that case, the Supreme Court emphasized: “For years the medical and mental health care provided by California’s prisons has fallen short of minimum constitutional requirements and has failed to meet prisoners’ basic health needs. Needless sufering and death have been the well- documented result.”126 The Court stressed that California prisoners “with serious mental illness do not receive minimal, adequate care,” with suicidal inmates held “for prolonged periods in telephone- booth-sized cages without toilets.”127
123 Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir. 1986) (citing Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982)); see also Kothmann v. Rosario, 558 F. App’x 907, 910 (11th Cir. 2014) (citation omitted) (“A correctional system’s deliberate indiference to a prisoner’s serious medical needs, including ‘psychiatric or mental health needs,’ violates the Eighth Amendment.”); Thomas v. Farley, 31 F.3d 557, 559 (7th Cir. 1994) (“Mental torture is not an oxymoron, and has been held or assumed in a number of prisoner cases, such as Joseph v. Brierton, 739 F.2d 1244 (7th Cir. 1984); Jordan v. Gardner, 986 F.2d 1521, 1525−26 (9th Cir. 1993), and Northington v. Jackson, 973 F.2d 1518, 1524 (10th Cir. 1992), to be actionable as cruel and unusual punishment.”); Green v. Wilson, No. PWG-15-3866, 2018 WL 3629970, at *5 (D. Md. July 31, 2018) (holding that the Eighth Amendment does not recognize “any distinction between the right to medical care for physical ills and its psychological and psychiatric counterparts”); Bentz v. Mulholland, No. 18-cv-1064-DRH, 2018 WL 2735483, at *9 (S.D. Ill. June 7, 2018) (holding that when harassment by prison ofcials is “accompanied by actions which suggest that the harassment is persistent or results in pain (either physical or psychological),” such “verbal harassment may support an Eighth Amendment claim”); Braggs v. Dunn, 257 F. Supp. 3d 1171, 1256 n.81 (M.D. Ala. 2017) (“ADOC’s failure to provide mental-health and correctional stafng sufcient to operate a minimally adequate mental- health system is in itself an unreasonable response under the deliberate- indiference standard.”); Henderson v. S. Carolina Dep’t of Corr., C/A No.: 4:17-287-BHH-TER, 2017 WL 2199020, at *5 (D. S.C. Apr. 25, 2017) (citation omitted) (“Claims regarding mental health treatment fall under a claim for deliberate indiference to medical care.”). 124 Langley v. Coughlin, 888 F.2d 252 (2d Cir. 1989). 125 Id. at 254. 126 Brown v. Plata, 563 U.S. 493, 501 (2011). 127 Id. at 503. 30 Bessler
Prisoners, like non-incarcerated human beings, have both physical and psychological needs. “Serious medical needs” in the prison context encompasses “conditions that are life-threatening or that carry risks of permanent serious impairment if left untreated, those that result in needless pain and sufering when treatment is withheld and those that have been diagnosed by a physician as mandating treatment.”128 Suicide is but one objectively serious harm that prison ofcials must guard against,129 and it has been specifcally held that, in the prison context, “[t]he Eighth Amendment protects inmates’ mental health as well as their physical health.”130 An inmate can therefore state a claim for deliberate indiference by alleging that “his ‘pleas’ for psychological treatment were ‘ignored,’”131 with one U.S. magistrate judge allowing an inmate’s complaint to proceed past a motion to dismiss where the inmate alleged a deliberate indiference to his serious medical needs that resulted “in increased pain, potentially life threatening spikes in blood pressure, dizzy spells, anxiety, and other psychological trauma.”132 In the immigration context, case law makes clear that “credible, specifc threats can amount to persecution if they are severe enough.”133 “‘[T]hreats of murder,’” the First Circuit has explained, “ft squarely within this rubric.”134 Although the Immigration
128 Scarver v. Litscher, 371 F. Supp. 2d 986, 999 (W.D. Wis. 2005). 129 Id.; see also Whitney v. City of St. Louis, 887 F.3d 857, 860 (8th Cir. 2018) (“The Eighth Amendment prohibits jail ofcials from acting with deliberate indiference towards risks of suicide.”); Mullin v. Balicki, 875 F.3d 140, 158 (3d Cir. 2017) (noting that a “vulnerability-to-suicide claim . . . is simply a more specifc articulation of the Eighth Amendment rule that prison ofcials must not be deliberately indiferent to a prisoner’s serious medical needs”). 130 Scarver, 371 F. Supp. 2d at 1000 (citing Calhoun v. DeTella, 319 F.3d 936, 940 (7th Cir. 2003); Meriwether v. Faulkner, 821 F.2d 408, 413 (7th Cir. 1987)). 131 Antonelli v. Sheahan, 81 F.3d 1422, 1432 (7th Cir. 1996); see also Harris v. Billington, No. 12-cv-437-wmc, 2015 WL 1893240, at *14 (W.D. Wis. Apr. 24, 2015) (holding that a delay in treatment “can, under certain circumstances, constitute deliberate indiference”). 132 Davis v. Hyden, No. A02-214 CV (JKS), 2005 WL 3116641, at *1, 5 (D. Alaska Nov. 21, 2005). 133 Javed v. Holder, 715 F.3d 391, 395−96 (1st Cir. 2013); see also Barreto v. U.S. Att’y Gen., 392 F. App’x 689, 691 (11th Cir. 2010) (“[W]e have held that a minor beating, a detention of 11 hours, and a credible death threat by a person who had the immediate ability to act on it constituted persecution.”). 134 Javed, 715 F.3d at 396 (quoting López de Hincapié v. Gonzales, 494 F.3d 213, 217 (1st Cir. 2007)); see also Sumschi v. U.S. Att’y Gen., 677 F. App’x 579, 581 (11th Cir. 2017) (quoting De Santamaria v. U.S. Att’y Gen., VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 31 and Nationality Act (“INA”)135 contains no statutory defnition of “persecution,”136 that term has been interpreted to cover a “threat of death, torture, or injury to one’s person”137 or—as another court put it—“severe humanitarian mistreatment, such as ‘death threats, involuntary confnement, torture, and other severe afronts to the life or freedom of the applicant.’”138 As the Ninth Circuit ruled in 1996: “There is no question that persistent death threats and assaults on one’s life, family, and business rise to the level of persecution.”139 More recently, the Ninth Circuit summarized its prior case law as follows: “In several cases, we have found that where the applicant was the target of repeated beatings, death threats, and expressions of hatred, a fnding of persecution is compelled.”140
525 F.3d 999, 1009−10 (11th Cir. 2008)) (“[W]e previously concluded that the record compelled a fnding that an alien was persecuted when she received repeated death threats over the course of two years and was dragged from her vehicle by her hair, was traumatized by the torture and murder of a family groundskeeper who refused to reveal her whereabouts, and was kidnapped and beaten.”); Sanchez Jimenez v. Att’y Gen., 492 F.3d 1223, 1233 (11th Cir. 2007) (fnding that past persecution included death threats, attempted kidnapping, and armed men shooting at the petitioner in a moving car); Lobo v. Holder, 684 F.3d 11, 18 (1st Cir. 2012) (citations omitted) (“[C]redible verbal death threats may fall within the meaning of ‘persecution[]’ . . . only when the threats are so ‘menacing as to cause signifcant actual sufering or harm.’”); Andriasian v. INS, 180 F.3d 1033, 1042 (9th Cir. 1999) (“[T]he warning that the Andriasians would be killed if they did not leave Azerbaijan immediately—which was made all the more credible by the fact that the Azeri thugs who issued the threat had just murdered Mr. Andriasian’s neighbor in cold blood—would by itself be sufcient to establish past persecution.”). 135 Under the INA, “the Attorney General has discretion to grant asylum to a noncitizen who is unable or unwilling to return to his home country ‘because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.’” née Joseph v. Sessions, No. 17-1403, 2018 WL 3549714, at *2 (4th Cir. Mar. 20, 2018) (citations omitted). 136 Id. at *3. 137 Id.; Yan Zhang v. Sessions, 681 F. App’x 554, 559 (8th Cir. 2017) (citations omitted); but see Jimenez v. Att’y Gen., 737 Fed. Appx. 117, 118 (3d Cir. 2018) (“To meet the legal defnition of torture, the threat of harm must be ‘by or at the instigation of or with the consent or acquiescence of a public ofcial or other person acting in an ofcial capacity.’”) (quoting 8 C.F.R. § 1208.18(a)(1) (2018)). 138 Huang v. Att’y Gen. of U.S., 620 F.3d 372, 380 (3d Cir. 2010) (quoting Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 341 (3d Cir. 2008)). 139 Singh v. INS, 94 F.3d 1353, 1360 (9th Cir. 1996). 140 Marzbanian v. Holder, 597 F. App’x 947, 949 (9th Cir. 2015). The U.N. 32 Bessler
While menacing threats can constitute persecution, empty or unsubstantiated threats unsupported by evidence of danger do not meet the standard for a persecution claim.141 For example, it has been held that “mere threats, such as anonymous death threats through the telephone, without more, do not rise to the level of persecution.”142 But it is clear, as the Eleventh Circuit has stated, that “[a] credible death threat by a person who has the immediate ability to act on it constitutes persecution regardless of whether the threat is successfully carried out.”143 “We are more likely to conclude,” the Eleventh Circuit has observed, “that the record compels a fnding of past persecution when an applicant faced imminent and credible death threats.”144 “We are also more likely to conclude,” the Eleventh Circuit has stressed, “that the record compels a fnding
Human Rights Committee has itself determined, in a diferent context, that States cannot ignore “known threats to the life of persons under their jurisdiction, just because he or she is not arrested or otherwise detained.” International Human Rights Law 270 (Daniel Moeckli et al. eds., 2d ed. 2014) (citing Delgado Páez v. Columbia, CCPR/C/39/D/195/1985 (12 July 1990), para. 5.5). The Human Rights Committee has thus “found violations of the right to security where there was a failure to investigate credible death threats.” Id. 141 Lemus-Arita v. Sessions, 854 F.3d 476, 481 (8th Cir. 2017) (citations omitted) (“a threat that is ‘exaggerated, nonspecifc, or lacking in immediacy may be insufcient’”; “[t]hreats alone constitute persecution in only a small category of cases, and only when the threats are so menacing as to cause signifcant actual sufering or harm”); Hernandez-Lima v. Lynch, 836 F.3d 109, 114 (1st Cir. 2016) (citations omitted) (“Death threats rise to the level of persecution only when ‘so menacing as to cause signifcant actual sufering or harm.’ Evidence that such threats were entirely empty ‘plainly supports [a] determination’ that they did not meet that standard.”); Vera v. Holder, 425 F. App’x 604, 605 (9th Cir. 2011) (citations omitted) (“Only in ‘extreme cases’ involving ‘repeated and especially menacing death threats’ have we held such threats establish past persecution.”). 142 Cordero v. U.S. Att’y Gen., 374 F. App’x 882, 887 n.1 (11th Cir. 2010). 143 Diallo v. U.S. Att’y Gen., 596 F.3d 1329, 1333−34 (11th Cir. 2010). Credible death threats can and do result in criminal prosecutions. E.g., United States v. Stewart, 420 F.3d 1007 (9th Cir. 2005); United States v. Polson, 154 F. Supp. 2d 1230, 1231, 1234 (S.D. Ohio 2001). “In general, whether a communication constitutes a ‘threat’ within the purview of 18 U.S.C. § 876 is a question of fact for the jury so long as a reasonable recipient, familiar with the context of the communication, could interpret it as a threat.” Id. at 1235; see also State v. January, No. 75170-1-I, 2017 WL 5127889, at *3 (Wash. Ct. App. Nov. 6, 2017) (“The nature of a threat depends on all the facts and circumstances and is not limited to a literal translation of the words spoken.”). 144 Gutierrez-Granda v. U.S. Att’y Gen., 386 F. App’x 848, 851 (11th Cir. 2010). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 33 of past persecution when the applicant has sufered physical injury along with death threats.”145 “A specifc threat of harm to an asylum applicant,” a guide produced by the American Immigration Lawyers Association observes, “is usually sufcient to demonstrate a well- founded fear of persecution.”146
C. The Torturous and Coercive Nature of Threats of Death Death threats and threats of physical harm not only induce fear147 and sufce for purposes of inmates setting forth legitimate section 1983 claims,148 but they can also, in particular circumstances, terrorize149 and constitute acts of torture, that is, the extreme or aggravated form of cruelty.150 In Death Threats and Violence: New
145 Id. 146 Regina Germain, AILA’s Asylum Primer: A Practical Guide to U.S. Asylum Law and Procedure 68 (2005). That standard for making out a claim of a well-founded fear of persecution has been laid out in a number of cases. E.g., Dong Ming Wu v. U.S. Att’y Gen., 270 F. App’x 211, 214 (3d Cir. 2008) (citations omitted) (noting that a well-founded fear of persecution “encompasses ‘threats to life, confnement, torture, and economic restrictions so severe that they constitute a threat to life or freedom,’ including forced sterilization”); accord Yu v. U.S. Att’y Gen., 513 F.3d 346, 348 (3d Cir. 2008). 147 Fortson v. Eppinger, No.: 1:15 CV 2078, 2017 WL 603086, at *6 (N.D. Ohio Feb. 15, 2017) (“[T]he jury was well aware that both women were extremely reluctant to testify. The record reveals that Andee Caver was afraid to testify because she had received death threats . . . .”); see also Kenneth L. Karst, Threats and Meanings: How the Facts Govern First Amendment Doctrine, 58 Stan. L. Rev. 1337, 1341−44 (2006) (“Death threats are particularly harmful, for they trigger short-term fear and long-term anxiety.”). 148 McKenney v. Farrinton, 2:16-cv-00630-JAW, 2017 WL 825280, at *5 (D. Me., Mar. 2, 2017) (citations omitted) (“Several circuit courts of appeals have held that . . . threats can constitute the necessary adverse action. . . . [A] verbal insult alone does not constitute adverse action. Death threats and threats of serious physical harm, however, generally sufce.”); see also Dixon v. Groeger, 2:16-cv-00178 NT, 2016 WL 4532066, at *2, *4 (D. Me., Aug. 29, 2016) (“[D]eath threats and threats of serious physical harm generally sufce.”). 149 In re Chiquita Brands Int’l, Inc., 190 F. Supp. 3d 1100, 1104 (S.D. Fla. 2016) (“AUC was a violent terrorist organization which had unleashed a systematic campaign of terror—death threats, extrajudicial killings, torture, rape, kidnappings, forced disappearances and looting—against vast swathes of the Colombian civilian population”). 150 Azadeh v. Government of Islamic Republic of Iran, No. 1:16-cv-1467 (KBJ), 2018 WL 4232913, at *11 (D. D.C. Sept. 5, 2018) (noting that “torture” is a label “usually reserved for extreme, deliberate and unusually cruel practices”). See also Michael John Garcia, Cong. Research Serv., RL32438, U.N. Convention Against Torture (CAT): Overview 34 Bessler
Research and Clinical Perspectives, Stephen Morewitz, citing a 2006 study and noting the prevalence of death threats varies by context and the underlying motivations for them, emphasizes: “Death threats are a prevalent form of psychological torture. Based on a study of 69 refugees who were torture survivors, Olsen et al. (2006) discovered that death threats were the most prevalent method of torture.”151 As Morewitz notes: “They are prevalent in domestic violence episodes, in time of war, and especially during periods of racial and ethnic conficts and political instability.”152 Though death threats are often coupled with physical abuse and beatings,153 threats of death—all by themselves—can thus be torturous, as the legal classifcation of mock executions as acts of psychological torture makes crystal clear.154
and Application to Interrogation Techniques 18 (2009) (“U.S. courts and administrative bodies have found that severe beatings, maiming, sexual assault, rape, and (in certain circumstances) death threats may constitute ‘torture’ for purposes of either CAT or TVPA”); Declaration on the Protection of All Persons, supra note 22, at art. 1(2) (“Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.”). Threats made in interrogation settings have sometimes been described as constituting “psychological torture.” Crowe v. County of San Diego, 608 F.3d 406, 432 (9th Cir. 2010). 151 Stephen J. Morewitz, Death Threats and Violence: New Research and Clinical Perspectives 5 (2008); see also id. at 99 (“Death threat victims can sufer severe impairment in their occupational functioning. They are at increased risk of sufering severe anxiety, depression, and other stress-related health problems and may be at risk for engaging in suicidal behaviors.”). 152 Morewitz, supra note 151, at 6. Threats to kill or threats of harm are prohibited by international human rights law and international humanitarian law. See, e.g., Jordan J. Paust, Human Rights on the Battlefeld, 47 Geo. Wash. Int’l L. Rev. 509, 540−41 (2015) (“[T]he following unlawful interrogation tactics are absolutely prohibited under both human rights law and the laws of war: (1) torture that occurs from the use of waterboarding or related forms of inducement of sufocation, (2) the cold cell and related forms of inducement of hypothermia, (3) rape and other forms of sexual violence as an interrogation tactic or other form of conduct during war, (4) threats to kill the detainee and/or others, and (5) use of snarling dogs against naked persons in order to induce intense fear or terror.”). 153 E.g., Abebe-Jiri v. Negewo, No. 1:90-CV-2010-GET, 1993 WL 814304, at *1 (N.D. Ga., Aug. 20, 1993) (describing the “interrogation and torture” of a woman in the presence of several men, where she was “told to take of her clothes,” where her “arms and legs were then bound and she was whipped with a wire on her legs and her back,” and where she was “repeatedly threatened with death if she did not reveal the location of a gun”). 154 Gary D. Solis, The Law of Armed Conflict: International VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 35
III. The Nature of Capital Prosecutions
A. Threats of Death in Penal Systems Threats have long been used in penal systems and by judges, as the history of capital and corporal punishments demonstrates.155 In colonial times, a common punishment was to make an ofender sit on the gallows with a noose around the neck.156 For example, in colonial Massachusetts, in an efort to curtail stealing, a 1736
Humanitarian Law in War 668 (2d ed. 2016) (“The U.N. Human Rights Committee and the Inter-American Commission on Human Rights consider mock executions torture.”); see also Torture and Its Consequences: Current Treatment Approaches 204 (Metin Başoğlu ed. 1992) (“Sham executions are a well-known and frequently reported form of torture (e.g., Allodi & Cowgill, 1982; Benfeldt-Zachrisson, 1985; Goldfeld et al., 1988).”). Sometimes the detainee is subject to a prolonged threat of execution.”); id. at 475 (“Commonly used psychological methods of torture include . . . threats of torture to self or relatives and sham executions.”). 155 E.g., John D. Bessler, The Anomaly of Executions: The Cruel and Unusual Punishments Clause in the 21st Century, 2 Brit. J. Am. Leg. Studies 297 (2013) (describing the history of capital punishment and corporal punishments in the United States). Of course, making threats against judges is a criminal ofense. E.g., 18 U.S.C. § 115 (2012) (making it a crime to threaten “to assault, kidnap, or murder . . . a United States judge”); Judicial Independence in Transition 1248 (Anja Seibert-Fohr ed., 2012) (“Violence or threats made to judges or those close to them is a criminal ofence.”); Life Under Death Threats: Dangers Faced by Judges, Prosecutors, NPR, (Apr. 1, 2013), http://www.npr.org/2013/04/01/175938445/the- dangers-facing-judges-and-prosecutors (“In 2012, 1,370 threats were made against federal judges.”). 156 Jeannine Marie DeLombard, In the Shadow of the Gallows: Race, Crime, and American Civil Identity 341 n.31 (2012) (noting that a man was found guilty of attempted rape and sentenced “to sit on gallows”); Daniel Allen Hearn, Legal Executions in New England: A Comprehensive Reference, 1623−1960, at 117 (1999). As one source notes, citing a newspaper story from 1752: “At the Court of Assize, at Springfeld, the 2d Tuesday of September last, Daniel Bailey and Mary Rainer, of a Place adjoining to Shefeld in that county, were convicted of Adultery, and were sentenced to sufer the Penalty of the Law therefor, viz. to sit on the Gallows with a Rope about their Necks, for the Space of an Hour; to be whipt forty Stripes each, and to wear for ever after a Capital A, two Inches long, and proportionable in bigness, cut out in Cloth of a contrary Colour to their Cloaths, and sewed upon their upper Garments, either upon the outside of the arm, or on the back.” George Francis Dow, Every Day Life in the Massachusetts Bay Colony 214 n.* (1988) (citing Boston Evening-Post, Oct. 9, 1752). 36 Bessler law subjected thieves to increasing penalties—and escalating threats of death—for each ofense.157 A frst-time ofender was to be fned or whipped; a second ofense required the thief to pay tremble damages, sit upon the gallows platform for an hour with a rope around his neck, and then to receive up to thirty stripes at the whipping post; and, fnally, to be hanged for a third ofense.158 “The colonists’ rationale,” one historian notes, “was clear: anyone impervious to the fne and the whip, who did not mend his ways after an hour with a noose about him, was uncontrollable and therefore had to be executed.”159 The punishment of sitting on the gallows continued to exist in Massachusetts after the Revolutionary War,160 though it eventually passed from the scene along with the corporal punishments of branding, whipping, ear cropping, and standing in the pillory.161 Living under a threat of death, the evidence shows, is a deeply depressing experience, especially when one is confned in prison—and particularly when one is confned in isolation on death row with all that entails.162 “Most signifcantly for the ofender,”
157 The Charters and General Laws of the Colony and Province of Massachusetts Bay 509 (1814). 158 Id. at 509−10. 159 David J. Rothman, The Discovery of the Asylum: Social Order and Disorder in the New Republic 52 (rev. ed. 2017). 160 1 The Perpetual Laws of the Commonwealth of Massachusetts, from the Establishment of Its Constitution, in the Year 1780, to the End of the Year 1800, at 351 (Boston, I. Thomas & E.T. Andrews 1801) (reprinting a 1786 law that provided for the following punishment: “to sit on the gallows with a rope round his neck for the space of one hour”); 1 The General Laws of Massachusetts, from the Adoption of the Constitution, to February, 1822, at 65, 183, 185 (Boston, Wells & Lily and Cummings & Hillard 1823) (referencing 1782 and 1785 Massachusetts laws providing for the punishment of “sitting on the gallows, with a rope about the neck,” “sitting on the gallows with a rope about his neck,” and “sitting on the gallows the space of one hour, with a rope about his neck”); Andrew Dunlap, A Speech Delivered Before the Municipal Court of the City of Boston, in Defence of Abner Kneeland, on an Indictment for Blasphemy 2, 44 (Boston, 1834) (referencing the punishment of “sitting on the gallows, with a rope about the neck”). 161 Proceedings of the American Antiquarian Society, at the Semi-Annual Meeting, Held in Boston, April 28, 1875, at 69−70 (Worcester, Charles Hamilton, Paladium Ofce 1875). 162 Handbook of Correctional Mental Health 467 (Charles L. Scott 2d ed., 2010) (“Treating psychiatrists may encounter death row inmates experiencing overwhelming fear, helplessness, recurrent depression, and VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 37
Carol and Jordan Steiker write in Courting Death: The Supreme Court and Capital Punishment, “extended death row incarceration presents special problems of cruelty, especially given the prevailing harsh conditions of death row confnement.” “Condemned inmates,” they explain, “now face multiple punishments: lengthy incarceration in solitary-style conditions; the anguish of perpetually living under a sentence of death; and actual execution.”163 It is a dreary existence, with death row inmates using the phrase “Dead Man Walking”— the expression popularized by Sister Helen Prejean’s book of the same name164—to refer to the condemned before execution.165 In the late-nineteenth-century case of In re Medley,166 the U.S. Supreme Court itself emphasized that “when a prisoner sentenced by a court to death is confned in the penitentiary awaiting the execution of the sentence, one of the most horrible feelings to which he can be subjected during that time is the uncertainty during the whole of it.”167 The process of state-sanctioned killing begins with a prosecutor’s notice of intent to seek the death penalty. Under federal law, the prosecutor advises the defendant and the court “a reasonable time before trial,” or before the acceptance of a plea, of the government’s intention to seek the death penalty.168 The
self-mutilation.”); id. (“Another phenomenon not uncommonly seen on death row is an inmate who voluntarily waives appeals in an efort to hasten the execution. The motivations of these so-called volunteers may be rooted in depression, resentment, or simple demoralization.”); see also Smith v. Mahoney, 611 F.3d 978, 999 (9th Cir. 2010) (Fletcher, J., dissenting) (“At the time of the arraignment, he was deeply depressed because he had been in solitary confnement for some time and subjected to harsh living conditions. He had received death threats from Native American inmates and believed that he would be killed in prison.”). The issue of “volunteers” has been discussed at length elsewhere. E.g., John H. Blume, Killing the Willing: “Volunteers,” Suicide and Competency, 103 Mich. L. Rev. 939 (2005); C. Lee Harrington, A Community Divided: Defense Attorneys and the Ethics of Death Row Volunteering, 25 Law & Soc. Inquiry 849 (2000). 163 Carol S. Steiker & Jordan M. Steiker, Courting Death: The Supreme Court and Capital Punishment 207 (2016). 164 Helen Prejean, Dead Man Walking: An Eyewitness Account of the Death Penalty in the United States (1993). 165 David W. Neubauer & Henry F. Fradella, America’s Courts and the Criminal Justice System 386 (10th ed. 2011). 166 In re Medley, 134 U.S. 160 (1890). 167 Id. at 172. 168 Charles Doyle Sr., The Death Penalty: Capital Punishment Legislation in the 110th Congress, in Capital Punishment Update 8 (Lorraine V. Coyne ed., 38 Bessler
U.S. Department of Justice has a death penalty protocol whereby a local U.S. attorney cannot seek the death penalty without prior authorization from the Attorney General of the United States. Per that protocol, U.S. attorneys are required to submit to the Department of Justice’s Capital Case Unit of the Criminal Division all cases involving a charge for which the death penalty is a legally authorized sanction, regardless of whether the U.S. attorney recommends seeking the death penalty. After the Capital Case Unit reviews the case and prepares an initial analysis and recommendation, the Attorney General’s Capital Case Review Committee, composed of senior Justice Department lawyers, meets with the U.S. attorney and defense counsel, reviews all documents submitted by the parties, and makes its recommendation to the Attorney General. The Attorney General then makes the fnal decision regarding whether to seek the death penalty.169 Part and parcel of torture is instilling the fear of death or bodily harm,170 and capital charges backed by the resources of federal, state, or local prosecutors—ones designed to take a person’s life—certainly cannot be taken lightly by those facing such charges.171 In fact, threats of bodily harm or death, the U.N. Human
2007). 169 Samuel Walker et al., The Color of Justice: Race, Ethnicity, and Crime in America 388 (6th ed. 2016). 170 On the practice of torture in prior centuries, one commentator writes: “Often, the intent was to instill the fear of death, as in the use of water torture.” The Torture Debate in America 4 (Karen J. Greenberg ed., 2006). Instilling intense fear remains the goal of modern torture techniques. Kerim Yildiz & Juliet McDermott, Torture in Turkey: The Ongoing Practice of Torture and Ill-Treatment 105 (2004); see also id. at 39 (“[T]orture terrorizes. The body in pain winces; it trembles. The muscles themselves register fear. This, too, is rooted in pain’s biological function of impelling us in the most urgent way possible to escape from the source of pain—for that impulse is indistinguishable from panic. U.S. interrogators have used the technique of “waterboarding” to break the will of detainees. They are strapped to a board and immersed repeatedly in water, just short of drowning. As anyone knows who has ever come close to drowning or sufocating, the oxygen-starved brain sends panic-signals that overwhelm everything else.”). 171 Neuroscientists have noted that psychological torture—sometimes called “no-touch” torture—releases stress hormones by creating intense fear. Armin Krishnan, Military Neuroscience and the Coming Age of Neurowarfare 200 (2017); see also Diarmuid Cunnife, The Worst Scars Are in the Mind: Deconstructing Psychological Torture, 7 ICL J. 1, 14−16 (2013) (discussing how threats induce fear, can weaken resistance and “break the will of detainees,” “are a particularly cruel form of psychological sufering,” VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 39
Rights Committee has determined, can constitute psychological torture. For instance, in Estrella v. Uruguay, a concert pianist—an Argentine national, Miguel Angel Estrella, then living in France— fled a communication with the Human Rights Committee about his detention in a Uruguayan prison. Estrella’s communication asserted that, in December 1977, he was subjected to torture after armed individuals in civilian clothes broke into his house, threatened him with death, and he was punched and kicked, had his feet and hands bound, and was blindfolded and hooded.172 The alleged psychological torture he was subjected to was said to consist “chiefy in threats of torture or violence to relatives or friends, or of dispatch to Argentina to be executed,” and “in threats of making us witness the torture of friends.” “For hours upon end,” Estrella asserted of his tormentors, “they put me through a mock amputation with an electric saw, telling me: ‘we are going to do the same to you as Victor Jara’”—a reference to a well-known Chilean singer and guitarist who was found dead, with his hands completely smashed, at the end of September 1973 in a stadium in Santiago, Chile. On March 25, 1982, the Human Rights Committee decided that Estrella “was subjected to severe physical and psychological torture, including the threat that the author’s hands would be cut of by an electric saw, in an efort to force him to admit subversive activity.”173
and how “[t]he sensation of fear or exposure to life-threatening situations and fear of death is, in psychological and psychiatric terms, described as a major ‘stressor’”). 172 Estrella v. Uruguay, Communication No. 74/1980, U.N. Doc. CCPR/C/ OP/2 at 93 (1990), http://hrlibrary.umn.edu/undocs/newscans/74-1980. html. “The alleged physical torture consisted of electric shocks, beatings with rubber truncheons, kicks and punches, hanging him up with his hands tied behind his back, pushing him into water until he nearly drowned, and making him stand with his legs apart and arms raised for up to 20 hours.” Id. 173 Id.; see also Nigel Rodley (Special Rapporteur for the Commission on Human Rights), Question of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, at 3, para. 3, U.N. Doc. A/56/156 (July 3, 2001) (“As stated by the Human Rights Committee in its General Comment No. 20 (10 April 1992), on article 7 of the International Covenant on Civil and Political Rights, the Special Rapporteur would like to remind Governments that the prohibition of torture relates not only to acts that cause physical pain but also to acts that cause mental sufering to the victim, such as intimidation and other forms of threats.”); id., at 3, para. 4 (“A number of decisions by human rights monitoring mechanisms have accordingly referred to the notion of mental pain or sufering, including sufering through intimidation and threats, as a violation of the prohibition of torture and other forms 40 Bessler
The Inter-American Court of Human Rights has itself repeatedly concluded that fear and terror are sufcient to establish mental torture. If a person is threatened with bodily harm, it is characterized as psychological torture. Thus, in Maritza Urrutia v. Guatemala, the Inter-American Court concluded in 2003: “An international juridical regime of absolute prohibition of all forms of torture, both physical and psychological, has been developed and, with regard to the latter, it has been recognized that the threat or real danger of subjecting a person to physical harm produces, under determined circumstances, such a degree of moral anguish that it may be considered ‘psychological torture.’”174 Likewise, in Baldeón García v. Peru, the Inter-American Court found in 2006 that “threats and real danger of physical harm causes, in certain circumstances, such a degree of moral anguish that it may be considered psychological torture.”175 And in Tibi v. Ecuador,176 the Inter-American Court found that the victim “was threatened” during his detention in violation of Article 5 of the American Convention177 and that such conduct, which “made him feel panic and fear for his life, . . . is a form of torture.”178 That decision made clear that the American Convention’s prohibition of torture and cruel, inhuman, or degrading punishment or treatment extends to not only physical
of ill-treatment. In particular, the Special Rapporteur would like to draw Governments’ attention to the views expressed by the Human Rights Committee in the case of Estrella v. Uruguay.”); id., at 4, para. 8 (“It is the Special Rapporteur’s opinion that serious and credible threats, including death threats, to the physical integrity of the victim or a third person can amount to cruel, inhuman or degrading treatment or even to torture, especially when the victim remains in the hands of law enforcement ofcials.”). 174 Maritza Urrutia v. Guatemala, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R., (ser. C) No. 147, para. 92 (Nov. 27, 2003), http://www. corteidh.or.cr/docs/casos/articulos/seriec_103_ing.pdf. 175 Baldeón García v. Peru, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R., (ser. C) No. 147, para. 119 (Apr. 6, 2006), http://www.corteidh. or.cr/docs/casos/articulos/seriec_147_ing.pdf. 176 Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R., (ser. C) No. 147, para. 147 (Sept. 7, 2004). 177 Article 5 of the American Convention on Human Rights provides in part: “Every person has the right to have his physical, mental, and moral integrity respected.” Organization of American States, American Convention on Human Rights art. 5(1), Nov. 22, 1969, O.A.S.T. No. 36, 1144 U.N.T.S. 123. “No one,” that article further provides, “shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.” Id. at art. 5(2). 178 Tibi v. Ecuador, Inter-Am. Ct. H.R., (ser. C) No. 114, para. 149. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 41 sufering but also psychic and moral anguish.179 “[T]hreats and the real danger of subjecting a person to physical injury,” that court emphasized, “may be considered psychological torture.”180 A recent report of the Human Rights Clinic of the University of Texas School of Law, “Designed to Break You: Human Rights Violations on Texas’ Death Row,” specifcally documents the torture and inhumanity associated with life on death row.181 In that report, its authors note that every individual on Texas’ death row “spends approximately 23 hours a day in complete isolation for the entire duration of their sentence, which, on average, lasts more than a decade.”182 As the report then emphasizes: “This prolonged solitary confnement has overwhelmingly negative efects on inmates’ mental health, exacerbating existing mental health conditions and causing many prisoners to develop mental illness for the frst time.”183 “In addition to the detrimental efects of isolation,” the report notes, “the practice of setting multiple execution dates means that many prisoners are subjected to the psychological stress of preparing to die several times during their sentence.”184 “The right to be free
179 Id. at para. 147 (“The Court has also recognized that threats and the real danger of subjecting a person to physical injury, under certain circumstances, cause such a moral anguish that they may be considered psychological torture.”). 180 Id. 181 Jacey Fortin, Report Compares Texas’ Solitary Confnement Policies to Torture, N.Y. Times, Apr. 26, 2017 (citing Human Rights Clinic, The University of Texas School of Law, Designed to Break You: Human Rights Violations on Texas’ Death Row (2017)); see also A Death Before Dying: Solitary Confnement on Death Row, Am. Civ. Liberties Union (July 2013), www.aclu.org/sites/default/fles/feld_document/deathbeforedying- report.pdf; Corinna Barrett Lain, Following Finality: Why Capital Punishment Is Collapsing Under Its Own Weight, in Final Judgments: The Death Penalty in American Law and Culture 30, 40 (Austin Sarat ed., 2017) (“On death row, each condemned prisoner spends at least 22 hours a day, typically 23, within the confnes of a windowless cell the size of a standard parking lot space. . . . Most are not allowed contact visits from family or friends. Death row inmates are typically allowed an hour or less of exercise each day, and typically that takes place in caged exercise pens akin to dog runs.”). 182 Human Rights Clinic, The Univ. of Tex. Sch. of Law, supra note 181, at 5; see also Lain, supra note 181, at 40. 183 Human Rights Clinic, The Univ. of Tex. Sch. of Law, supra note 181, at 5. 184 Id.; see also Robert M. Bohm, DeathQuest: An Introduction to the Theory and Practice of Capital Punishment in the United States 225 (5th ed. 2017) (“In all death penalty jurisdictions, a death or 42 Bessler from torture is an absolute human right, and it is submitted that the current conditions of confnement on Texas’ death row, including mandatory indefnite isolation, amount to a severe and relentless act of torture,” the report concludes.185 “Inmates held in solitary confnement,” the report assesses, “are efectively subject to a severe form of psychological torture every day of their lives.”186 The uncertainty and unknowns associated with capital cases only serve to amplify the torturous nature of death penalty regimes. “Another particularly stressful experience is the anticipation of torture,” Metin Başoğlu and Susan Mineka emphasize in Torture and Its Consequences. As they write in that book: “This vulnerability is often exploited by the torturers who make verbal threats of torture. Many survivors report that having to wait to be taken from their cell to the torture chamber can be even more distressing than torture itself.”187 “The anticipatory distress,” they explain, “seems to be greater if the intervals between sessions are variable and/or if there is an uncertainty about the nature of the next torture session; both of these factors obviously maximize unpredictability.”188 “Such observations,” they point out, “are corroborated by research in animals showing that shocks delivered at variable intervals (as opposed to fxed intervals) produce greater heart rate elevations and more ulceration.”189 Death row inmates clearly endure enormous
execution warrant instigates the execution process. A death warrant, which typically sets the date and place for a prisoner’s execution, usually is issued by a state’s governor, or the president of the United States in federal death penalty cases, and authorizes a warden or other prison ofcials to carry out a death sentence. In Texas, a district court judge sets the execution date. . . . The length of time before a death warrant expires and has to be reissued varies from a few days to several months.”). 185 Human Rights Clinic, The Univ. Tex. Sch. Law, supra note 181, at 7. 186 Id. at 21. One former death row inmate described life on death row as a “slow mental, physical and spiritual torture.” Id. at 22. 187 Metin Başoğlu & Susan Mineka, The Role of Uncontrollable and Unpredictable Stress in Post-Traumatic Stress Responses in Torture Survivors, in Torture and Its Consequences: Current Treatment Approaches 182, 206 (Metin Başoğlu ed., 1992). 188 Id. 189 Id. In that source, Metin Başoğlu and Susan Mineka further emphasize: “Certain forms of torture seem to have a much greater impact than others in inducing loss of control and feelings of helplessness in the detainee. Those that involve a perceived risk of death during the process appear to be more traumatic than the ones that merely involve physical pain but no real threat to life. Submersion of the head under water until near-asphyxiation or sham executions are examples of such methods.” Id. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 43 uncertainty and mental anguish, vacillating between hope and intense fear and despair while coping with severe depression and psychological trauma and, often, suicidal thoughts or ideation.190
B. Capital Charges, Death Sentences, and Execution Protocols Capital charges—or threats of death by police or prosecutors— are themselves extremely problematic when analyzed through the lens of the legal prohibition against torture. It is well known that confessions can be obtained through coercion or torture,191 and those facing death threats can be compelled to make choices—often as a result of duress—they might not have made had the prospect of death been removed from the equation.192 False or coerced
190 John D. Bessler, Cruel and Unusual: The American Death Penalty and the Founders’ Eighth Amendment 225 (2012) (“Condemned inmates, sufering from bouts of depression, often take their own lives . . . . One Florida study showed that 35 percent of death row inmates in that state attempted suicide and that 42 percent considered suicide.”). 191 George Ryley Scott, The History of Torture Throughout the Ages 276 (2009) (“Terror induced by threats is frequently tried to induce admission of guilt. A police ofcer may threaten to shoot the accused, and has been known to go so far as to press a revolver, loaded with blank cartridges, against the head or stomach and pull the trigger.”); see also Ashcraft v. Tennessee, 322 U.S. 143, 155 (1944) (“The Constitution of the United States stands as a bar against the conviction of any individual in an American court by means of a coerced confession. There have been, and are now, certain foreign nations with governments dedicated to an opposite policy: governments which convict individuals with testimony obtained by police organizations possessed of an unrestrained power to seize persons suspected of crimes against the state, hold them in secret custody, and wring from them confessions by physical or mental torture. So long as the Constitution remains the basic law of our Republic, America will not have that kind of government.”); Chambers v. State of Florida, 309 U.S. 227, 237−38 (1940) (referring to “physical and mental torture and coercion” in the context of “secret inquisitorial processes”). 192 Bessler, The Death Penalty as Torture, supra note 26, at 83 (“[I]n 1994, an Illinois federal district court emphasized that duress is a valid defense where there is ‘(1) an immediate threat of death or serious bodily harm; (2) a well-grounded fear that the threat will be carried out; and (3) no reasonable opportunity to escape the threatened harm.’ And in the early twentieth century, American marriages were invalidated where the consent of grooms was not freely given, but were obtained through threats of death by the fathers of the brides. . . . In a New Jersey case from the 1950s, ‘threats of gangster violence’ and ‘arsenic poisoning’ against a husband were themselves found to raise important questions of fact as to whether 44 Bessler confessions occur with some frequency,193 and the risk of miscarriages of justice is heightened signifcantly in situations involving threats of death.194 As one law review article reports: “The threat of a death
conveyances to the wife of property were procured by means of duress. In that case, Rubenstein v. Rubenstein, the husband’s allegations of threats of arsenic poisoning were given weight because the wife’s father was then serving a life sentence in a Pennsylvania prison for murder committed when he was associated with an ‘arsenic ring’ engaged in killings to defraud life insurers. Because the threat of arsenic poisoning was credible, the court gave signifcance to it.”). 193 E.g., Daniel Reisberg, The Science of Perception and Memory: A Pragmatic Guide for the Justice System 193 (2014) (providing estimates on the number of false confessions); Wrightsman’s Psychology and the Legal System 158 (Edie Greene & Kirk Heilbrun eds., 7th ed. 2011) (“It is undisputed that false confessions led to the wrongful conviction and imprisonment of fve people in Beatrice, Nebraska in a case known as the Beatrice Six . . . .”); id. at 159 (“The Beatrice Six—fve people who falsely confessed and one who was wrongfully convicted of the 1985 rape and murder of 68-year-old Helen Wilson in Beatrice, Nebraska— set the record for the most people exonerated by DNA evidence in one case. Their exonerations and pardons in 2008 shed light on the way that interrogators were able to get detailed statements from the suspects about a crime they did not commit.”); id. (“Suspect Joann Taylor confessed after interrogators told her they wanted her to be the frst female on Nebraska’s death row. In fact, fve of the six suspects, easily infuenced and probably confused, falsely confessed to escape the threat of a death penalty.”); Mordecai Specktor, Minneapolis Attorney Steve Kaplan Helps to Free Death Row Inmate Damon Thibodeaux, Who Had Been Wrongly Convicted of Rape and Murder, American Jewish World (Feb. 1, 2013), https://www.tcdailyplanet.net/ minneapolis-attorney-steve-kaplan-helps-free-death-row-inmate-damon- thibodeaux-who-h/ (“After nine hours of police grilling, and going without sleep for more than 30 hours, Thibodeaux cracked and falsely confessed to committing rape and murder.”). 194 E.g., McHenry v. United States, 308 F.2d 700, 703 (10th Cir. 1962) (citations omitted) (“An involuntary confession or one obtained by means of threats and promises which subject the mind of the accused to the torture or fear of fattery of hope is inadmissible in a criminal trial.”). As one court put it, in a situation where a man in police custody was threatened with the electric chair should he remain silent, thereby causing him to lose his capacity for rational calculation: “When a confession is forced from the mind by the fattery of hope or by the torture of fear, it is unreliable and no credit ought to be given to it. Promises or suggestions of leniency in exchange for waiving the Fifth Amendment privilege create a fattery of hope, which is made even more powerful by the torture of fear that accompanying threats of punishment induce in the mind of the accused.” State v. Petitjean, 748 N.E.2d 133, 141, 145 (Ohio Ct. App. 2000) (italics in original); accord David V. Baker, Women and Capital Punishment in the United States: An Analytical History 183 (2016) (“Police VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 45 sentence causes many defendants to plead guilty in exchange for a life sentence, rather than risk the outcome of a trial.”195 Just as death threats by prison guards can chill inmates’ exercise of their First Amendment rights,196 the prospect of being sentenced to death in a court of law is also likely to infuence the decision-making of
investigators and state prosecutors used the threat of the death penalty to coerce false confessions from Ada JoAnn Taylor, Debra Shelden, and Kathy Gonzales.”); Joe Duggan, Beatrice 6 Member Says Threat of Death Penalty Persuaded Her to Confess to a Slaying She Didn’t Commit, World-Herald Bureau (Oct. 25, 2016), https://www.omaha.com/news/crime/beatrice- member-says-threat-of-death-penalty-persuaded-her-to/article_51ebcf4f- 7299-5d08-8dfa-ebae55f0f5c2.html (“[W]hen the prosecutor agreed to take the death penalty of the table in exchange for a guilty plea and her cooperation, Taylor and her court-appointed attorney decided it was the best option. . . . Taylor said the decision to give a false confession may have saved her life, but it cost her more than 19½ years of freedom.”); see also Statement of Robert Dunham, Executive Director of the Death Penalty Information Center, on the release of the National Registry of Exonerations’ reports Exonerations in 2016 and Race and Wrongful Convictions in the United States (Mar. 7, 2017), https://deathpenaltyinfo.org/documents/ DPICStatementOnNationalRegistryReports.pdf (last visited Oct. 25, 2018) (“Our review of the 2016 data [from the National Registry of Exonerations] reveals that the death penalty played a role in nearly a quarter of the 54 homicide exonerations last year. In at least six of the wrongful homicide convictions, prosecutors had sought the death penalty at trial; in another, an innocent defendant had pled guilty to avoid the death penalty; and at least six additional exonerations were the product of witnesses having falsely implicated innocent defendants after police had threatened the witness or a loved one with the death penalty unless the witness cooperated with the investigation . . . .”). 195 Rachel King, No Due Process: How the Death Penalty Violates the Constitutional Rights of the Family Members of Death Row Prisoners, 16 Pub. Int. L.J. 195, 214 (2007). 196 Schleig v. Borough of Nazareth, No. 16-3499, 2017 WL 2591408, at *4 (3d Cir. June 15, 2017) (“In the few cases in which government ofcials have made death threats in response to constitutionally protected activity, no one has tried to claim that the ofending ofcial’s behavior is something other than unlawful retaliation.”); Knecht v. Collins, Nos. 96-3682, 96-3735, 96-4114, 1999 WL 427173, at *3 (6th Cir. June 15, 1999) (per curiam) (a reasonable jury could conclude that prison guards’ acts of fling false disciplinary charges and issuing death threats were sufcient to deter a prisoner of ordinary frmness from exercising First Amendment rights); Walker v. Firman, No. 16-cv-02221-RBJ-MEH, 2017 WL 4652015, at *10 (D. Colo. Oct. 17, 2017) (“It is also clearly established that making death threats in retaliation for protected conduct violates the First Amendment.”); Silverburg v. Seeley, No. 3:09CV-P493-R, 2009 WL 5197870, at *3 (W.D. Ky. Dec. 23, 2009) (“[T]he Court will allow the individual-capacity claims for damages for retaliation based on alleged threats of death . . . .”). 46 Bessler those facing capital prosecution or capital charges.197 In the lead up to actual executions, the mental torment death row inmates face is, no doubt, of the charts. In states that still put people to death, due process and fairness considerations inevitably yield to fnality. “Today’s executions,” Robert Johnson writes in Death Work: A Study of the Modern Execution Process, “are highly bureaucratic jobs with clearly delineated roles, responsibilities, and procedures articulated in execution protocols.”198 These protocols are often laden with minutia about how the executions will be carried out, yet the protocols put condemned inmates on notice, in no uncertain terms, that the
197 E.g., Bussey v. State, 184 So. 3d 1138, 1141 (Fla. Dist. Ct. App. 2015) (detectives’ repeated threats of the death penalty amounted to coercion that rendered a murder defendant’s confession involuntary); id. at 1145−46 (“The purpose of the detectives’ comments regarding the death penalty . . . was not to inform [Bussey] of the penalties he faced. Rather, the purpose of the comments was to instill fear in Bussey that he would face the death penalty with the hope that his fear would cause him to confess to the robbery and murder.”); cf. Galenski v. Commonwealth, No. 2012-SC- 000407-MR, 2013 WL 6730018, at *2 n.9 (Ky. Dec. 19, 2013) (citation omitted) (“The Beatrice Six is the colloquial name given to a group of six youths that were wrongfully convicted of murder in Beatrice, Nebraska, as a result of confessions induced by the threat of the death penalty.”); People v. Sanders, 976 N.Y.S.2d 205, 213 (N.Y. App. Div. 2013) (Hall, J., dissenting) (citations omitted) (“The defendant was threatened, by the FBI agent, with the possibility of death. This threat was used to overcome the defendant’s will, which is so ‘fundamentally unfair as to deny due process.’”); State v. Knight, No. 04-CA-35, 2008 WL 4369764, at *8−13 (Ohio Ct. App. Sept. 26, 2008) (Donovan, J., dissenting) (asserting that a murder confession was involuntary and “improperly induced” because “threats of the electric chair” introduced a “torture of fear” in order to “overbear” the suspect’s will). It has long been understood that torturous practices, which can include the use of death threats, can lead to false confessions. As one judge on the Supreme Court of Washington stressed in 2009: “We have reason to believe that, even in our own country and even in our own time, men have gone to prison and even death row on the strength of confessions wrought by torture.” State v. Riofta, 209 P.3d 467, 477 (Wash. 2009) (en banc) (Chambers, J., concurring in dissent). The threat of death may also infuence the decision- making of lawyers representing those facing the prospect of capital charges or death sentences. E.g., Sherod Thaxton, Leveraging Death, 103 J. Crim. L. & Criminology 475, 482−84 (2013) (fnding that the threat of the death penalty increases the probability of a plea agreement by approximately 20 percent, and noting that capital charges enable prosecutors to empanel “death-qualifed” juries and that “the use of the death penalty as leverage in plea negotiations raises important legal and ethical issues”). 198 Robert Johnson, Death Work: A Study of the Modern Execution Process 42 (1998). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 47 government aims to kill them. In a 2001 news story, The New York Times reported about the 56-page “Execution Protocol” to be used by the staf of the federal penitentiary in Terre Haute, Indiana.199 While professing to allow executions to be carried out “in an efcient and humane manner,” it provided a “systemic countdown to execution” that includes several pre-execution checklists.200 “As soon as practical after establishment of the execution date,” one section of the protocol read, “the warden at U.S.P. Terre Haute or designee, will personally brief the condemned individual regarding relevant aspects of the execution process.”201 “A briefng sheet outlining these aspects of the execution will be given to the individual,” the protocol continued.202 In other words, not only is a death row inmate already fully aware that a death sentence has been imposed, but a prison ofcial describes to the inmate the process by which that inmate’s life will be extinguished by the state. Under that Execution Protocol, the warden’s briefng with the condemned inmate was to take place “By 30 Days Before the Execution,” as was a conference with the condemned inmate pertaining to the selection of execution witnesses, to include “one spiritual adviser, two defense attorneys and three adult friends or relatives (at least 18 years old).”203 In addition, the condemned inmate was to be asked about “Disposition of Body” and “Disposition of Personal Property and Accounts,” with the inmate “to provide instructions concerning the disposition of his/her body no later than 14 days prior to the execution.”204 Throughout the process, the condemned inmate would be continually reminded, in ways big and small, that the execution was approaching. “At least seven days prior to the execution, the warden or designee will contact the condemned individual to arrange for his/her last meal,” the protocol read.205 “Between 24 and 12 Hours Prior,” it continued, “[t]he warden will contact the condemned individual to fnalize arrangements for his/ her fnal meal and ensure that it is properly prepared and served by
199 See Jane Fritsch, Word for Word/Execution Protocol; Please Order Your Last Meal Seven Days in Advance, N.Y. Times, Apr. 22, 2001, http://www.nytimes. com/2001/04/22/weekinreview/word-for-word-execution-protocol-please- order-your-last-meal-seven-days-advance.html. 200 Id. 201 Id. 202 Id. 203 Id. 204 Id. 205 Id. 48 Bessler staf.”206 After the termination of the condemned inmate’s telephone privileges “24 hours prior to the execution,” the condemned inmate’s fnal meal was to be served “Between 12 and 3 Hours Prior” to the execution.207 The death row inmate would, of course, also be aware of an attorney’s fnal eforts to save the inmate’s life as well as the submission of any clemency petition, all of which the inmate would be helpless to predetermine the outcome.208 According to the Execution Protocol,209 the warden, during the period “Between 3 Hours and 30 Minutes Prior” to the execution, was to “designate a recorder who will begin logging execution activities in the ofcial execution log book.”210 And in “The Final 30 Minutes,” several items were listed to be accomplished by prison authorities.211 In particular, the Execution Protocol’s section for “Bringing the Condemned Individual to the Execution Room” required the condemned individual to be removed from an inmate holding cell, strip-searched, and then “dressed in khaki pants, shirt and slip-on shoes,” “secured with restraints, if deemed appropriate by
206 Id. 207 Id. 208 The chances of a clemency petition being granted are quite small. David R. Dow, Executed on a Technicality: Lethal Injustice on America’s Death Row 86 (2005) (“Death penalty lawyers fle clemency petitions on behalf of their clients because when someone’s life is at stake, lawyers tend to leave nothing on the cutting room foor, but when they are writing the petitions, they know it is a mere formality.”); see also id. (italics in original) (noting that “hope is too strong a word to describe the clemency process in Texas”; “[d]eath row inmates do not receive clemency in Texas”). 209 This execution protocol is one of many throughout the United States that methodically detail how executions are to be carried out. The texts of various execution protocols can be found on the Death Penalty Information Center’s website. State by State Lethal Injection, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/state-lethal-injection (last visited Sept. 28, 2018) (containing links to available protocols). But see Evan J. Mandery, Capital Punishment in America: A Balanced Examination 492 (2d ed. 2012) (“[M]any states do not make their procedures known. Professor Deborah Denno of Fordham Law School has tirelessly detailed the failings of states in this regard, ofering many examples of states that have vague and even secret execution protocols.”); see also Daniel LaChance, Executing Freedom: The Cultural Life of Capital Punishment in the United States 91 (2016) (“[A]nthropological studies of executions in the modern era have drawn a connection between execution protocols and a loss of agency of both the condemned and the state actors engaged in ‘death work.’”). 210 Fritsch, supra note 199. 211 Id. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 49 the warden,” and “escorted to the Execution Room by the Restraint Team.”212 “In the Execution Room,” the protocol continued, “the ambulatory restraints, if any, will be removed, and the condemned individual will be restrained to the Execution Table.”213 “Once the condemned individual has been secured to the table,” the protocol read for the execution’s fnal stage, “at the direction of the warden, staf inside the Execution Room will open the drapes covering the windows of the witness rooms.”214 “The warden,” the protocol then read, “will ask the condemned individual if he/she has any last words or wishes to make a statement.”215 Because executions extinguish life and many executions are botched, a fact that death row inmates are no doubt well aware of, the psychological torment as an execution approaches is especially heightened.216
IV. The Torturous Nature of State-Sanctioned Killing
A. Mental vs. Physical Pain or Sufering Cruelty and torture—the aggravated form of cruelty—are prohibited by law.217 The U.N. Human Rights Committee, back in 1993, held that “the death penalty must be carried out in such a
212 Id. 213 Id. 214 Id. 215 Id. Robert M. Bohm, DeathQuest: An Introduction to the Theory and Practice of Capital Punishment in the United States 202 (5th ed. 2017) (“When the frst jolt of 2,000-volt electricity hit Tafero, the sponge in the headpiece gave of a combustible gas, which shot smoke and fames from the top of the leather hood hiding Tafero’s face. The fames—described as 3 inches to a foot long—horrifed witnesses. Tafero’s attorney described the fawed execution as torture.”). 216 Austin Sarat, Gruesome Spectacles: Botched Executions and America’s Death Penalty 5 (2014). In some cases, death row inmates have been forced to spend an extended amount of time on the lethal injection gurney or to endure excruciating pain during the execution itself. Rev. Carroll Pickett & Carlton Stowers, Within These Walls: Memoirs of a Death House Chaplain 79−98 (2017); Ziva Branstetter & Cary Aspinwall, Inmate Clayton Lockett Dies of Heart Attack After Botched Execution; Second Execution Postponed, Tulsa World (Apr. 30, 2014), http://www.tulsaworld.com/news/state/inmate-clayton-lockett-dies- of-heart-attack-after-botched-execution/article_80cc060a-cf2-11e3-967c- 0017a43b2370.html. 217 Greenberg, supra note 170, at 366 (noting that the Convention Against Torture treats torture as an extreme form of cruel, inhuman or degrading treatment). 50 Bessler way as to cause the least possible physical and mental sufering.”218 Similarly, the U.S. Supreme Court, while upholding the death penalty’s constitutionality in cases like Wilkerson v. Utah,219 In re Kemmler,220 Gregg v. Georgia,221 Baze v. Rees222 and Glossip v. Gross,223 has held that torture—as well as any barbaric method of execution224 (or one causing a “lingering death”)—is prohibited by the U.S. Constitution’s Eighth Amendment.225 For instance, the Supreme
218 Committee on Civil and Political Rights, NG v. Canada, ¶ 1, U.N. Doc. CCPR/C/49/D/469/1991 (Nov. 5, 1993). The Human Rights Committee expressed the view that there would be a real risk of cruel and inhumane treatment were gas asphyxiation to be used to carry out an execution. Id.; see also Committee on Civil and Political Rights, Kindler v. Canada, U.N. Doc. CCPR/C/48/D/470/1991 (July 30, 1993). 219 Wilkerson v. Utah, 99 U.S. 130 (1879) (upholding the constitutionality of the public fring squad). 220 In re Kemmler, 136 U.S. 436 (1890) (upholding the constitutionality of New York’s electric chair). 221 Gregg v. Georgia, 428 U.S. 153 (1976) (upholding the constitutionality of Georgia’s death penalty). At the same time as the Gregg ruling, the U.S. Supreme Court also upheld the constitutionality of the death penalty in Florida and Texas. Proftt v. Florida, 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 262 (1976). 222 Baze v. Rees, 553 U.S. 35 (2008) (upholding the constitutionality of Kentucky’s three-drug lethal injection protocol). 223 Glossip v. Gross, 135 S. Ct. 2726 (2015) (upholding the constitutionality of Oklahoma’s three-drug lethal injection protocol). Although the Supreme Court struck down the death penalty as unconstitutional in Furman v. Georgia, 408 U.S. 238 (1972), it reversed course four years later and upheld the death penalty’s constitutionality in Gregg v. Georgia, 428 U.S. 153 (1976). 224 Wilkerson, 99 U.S. at 135−36 (noting in dicta that “burning alive” and other “punishments of torture . . . in the same line of unnecessary cruelty, are forbidden” by the U.S. Constitution’s Eighth Amendment). 225 In re Kemmler, 136 U.S. at 447. Dissents have asserted that particular methods of executions are unconstitutional. E.g., Gomez v. U.S. Dist. Ct. for Northern Dist. of Cal., 503 U.S. 653, 658 (1992) (Stevens, J., dissenting) (citations omitted) (“More than a century ago, we declared that ‘[p]unishments are cruel when they involve torture or a lingering death.’ In light of our contemporary understanding of the methods of execution and in light of less cruel alternatives presently available, I believe that execution by cyanide gas is ‘incompatible with ‘the evolving standards of decency that mark the progress of a maturing society.’”); Glass v. Louisiana, 471 U.S. 1080, 1086 (1985) (Brennan, J. dissenting) (“[T]he Eighth Amendment requires that, as much as humanly possible, a chosen method of execution minimize the risk of unnecessary pain, violence, and mutilation. If a method of execution does not satisfy these criteria—if it causes ‘torture or a lingering death’ in a signifcant number of cases—then unnecessary cruelty inheres in that method of execution and the method violates the Cruel and Unusual Punishments Clause.”). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 51
Court—staking out its position—held more than a century ago, in its 1890 decision In re Kemmler: “Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the [C]onstitution.”226 The American founders’ use of cruel in the Eighth Amendment, the Court ruled, “implies . . . something inhuman and barbarous,—something more than the mere extinguishment of life.”227 But the In re Kemmler pronouncement about the death penalty’s constitutionality came decades before the U.S. ratifcation of the Convention Against Torture and its clear prohibition of “mental torture.”228 Although the U.S. Supreme Court has, over the years, upheld the constitutionality of the electric chair, the fring squad, and lethal injection,229 the Court has yet to take up—has yet to even consider on the merits—the death penalty’s adverse psychological impact. For example, while a few Justices have urged the full Court to take up the issue of the “death row phenomenon,” the Court has yet to accept for review a case dealing with prolonged stays on death row.230
226 In re Kemmler, 136 U.S. at 447. 227 Id. 228 America Needs Human Rights 207 (Anuradha Mittal & Peter Rosset eds., 1999) (noting that the United States signed the Convention Against Torture on April 18, 1988, ratifed it on October 21, 1994, and that the convention entered into force in the United States on November 20, 1994). 229 In such cases, the U.S. Supreme Court has focused on whether the particular method of execution would produce a lingering death and whether there would be excruciating, physical pain at the time of the inmate’s death. Although the Supreme Court has upheld the constitutionality of lethal injection, the most common method of execution today, Supreme Court Justices have sometimes dissented from the Court’s decisions. E.g., Arthur v. Dunn, 137 U.S. 725, 725 (2017) (Sotomayor, J., dissenting) (arguing that petitioner Thomas Arthur had “amassed signifcant evidence that Alabama’s current lethal-injection protocol will result in intolerable and needless agony”); John D. Bessler, Introduction to Stephen Breyer, Against the Death Penalty 1−70 (John D. Bessler ed., 2016) (discussing the dissents in Glossip v. Gross, 135 S. Ct. 2726 (2015)). 230 See William A. Schabas, The Death Penalty as Cruel Treatment and Torture: Capital Punishment Challenged in the World’s Courts 124−25 (1996) (discussing the death row phenomenon); Patrick Hudson, Does the Death Row Phenomenon Violate a Prisoner’s Human Rights under International Law? 11 Eur. J. Int’l L. 833 (2000) (same); Kara Sharkey, Delay in Considering the Constitutionality of Inordinate Delay: The Death Row Phenomenon and the Eighth Amendment, 161 U. Pa. L. Rev. 861, 863 (2013) (“The Supreme Court has repeatedly declined to address the validity of the unconstitutional delay claim raised by Valle and other death row inmates before him. The 52 Bessler
Meanwhile, the Court has struck down multiple non-lethal corporal punishments that operate on the body231 as well as death sentences for assorted categories of ofenders seen to have diminished capacity or responsibility.232 Since the prohibition against torture is absolute and non- derogable,233 and because credible death threats and threats of serious bodily harm are, even now, properly considered to be acts of torture,234 the death penalty must be outlawed post-haste. Already, a
issue frst came to the Court’s attention over ffteen years ago, in Lackey v. Texas.” (citing Valle v. Florida, 132 S. Ct. 1, 1 (2011); Lackey v. Texas, 514 U.S. 1045, 1045 (1995) (memorandum of Stevens, J., respecting the denial of certiorari)). 231 E.g., Hope v. Pelzer, 536 U.S. 730, 733−35 & n.2, 738, 745 (2002) (alleging that prison ofcials handcufed a shirtless inmate to a hitching post for seven hours, leading to “a substantial risk of physical harm” and unnecessary exposure to heat and sun, the Supreme Court held that such conduct constituted an “obvious” Eighth Amendment violation); Weems v. United States, 217 U.S. 349, 373 (1910) (striking down as unconstitutional a sentence of cadena temporal that entailed a minimum twelve-year sentence of imprisonment, chained day and night at the wrists and ankles, while performing hard and painful labor while so chained). 232 E.g., Kennedy v. Louisiana, 554 U.S. 407 (2008) (fnding that the Eighth Amendment’s Cruel and Unusual Punishments Clause prohibits the death penalty for the non-homicidal rape of a child); Roper v. Simmons, 543 U.S. 551 (2005) (declaring the unconstitutionality of the death penalty for juvenile ofenders); Atkins v. Virginia, 536 U.S. 304 (2002) (declaring the unconstitutionality of the death penalty for the intellectually disabled); Ford v. Wainwright, 477 U.S. 399 (1986) (barring the execution of the insane); Enmund v. Florida, 458 U.S. 782 (1982) (setting aside the death penalty for the driver of a getaway car in a robbery-murder); Coker v. Georgia, 433 U.S. 584 (1977) (fnding the death penalty to be disproportionate punishment for the non-homicidal rape of an adult woman). 233 Jordan J. Paust, The Absolute Prohibition of Torture and Necessary and Appropriate Sanctions, 43 Val. U. L. Rev. 1535, 1535 (2009) (“Torture is a form of treatment of human beings that is absolutely prohibited under various forms of customary and treaty-based international law in all social contexts.”). 234 John Alan Cohan, Torture and the Necessity Doctrine, Val. U. L. Rev. 1587, 1596 (2007) (“[I]n addition to physical torture there can be psychological torture, such as threatening to execute the suspect, putting a gun to his head and saying you will shoot, threatening to castrate him, telling him that you are going to kill his family members if he does not tell you the information you are seeking, and similar tactics that, while not physically painful, infict mental pain or sufering, even when there is no intent to carry out such threats.”); see also The Torture Papers: The Road to Abu Ghraib 179 (Karen J. Greenberg & Joshua L. Dratel eds., 2005) (citations omitted) (“In criminal law, courts generally determine whether an individual’s words or actions constitute a threat by examining whether a reasonable person in the VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 53 number of American judges—many of whom have publicly expressed aversion for death sentences and executions235—have concluded that capital punishment should be declared unconstitutional.236 “I yield to no one in the depth of my distaste, antipathy, and, indeed, abhorrence, for the death penalty, with all its aspects of physical distress and fear and of moral judgment exercised by fnite minds,” Justice Harry Blackmun wrote in 1972 while dissenting from the Supreme Court’s landmark, 5–4 decision in Furman v. Georgia, which found then-existing death penalty laws to be unconstitutional.237 Although he originally thought legislators, not judges, should decide the matter, Blackmun later changed his mind. “From this day forward, I no longer shall tinker with the machinery of death,” he concluded in 1994, this time taking the view that capital punishment should be declared unconstitutional after seeing the reality of death penalty cases.238 “I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed,” he emphasized.239 It is, in fact, simply impossible for the death penalty to be used or administered without resorting to credible threats of death, the very kind of threats that, when made by prison guards or non-state
same circumstances would conclude that a threat had been made.”). 235 Many U.S. Supreme Court Justices, while on the Court or after retiring from it, have expressed moral or legal objections to capital punishment. Linda Greenhouse, Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey 113, 176−79 (2005); Michael Mello, Against the Death Penalty: The Relentless Dissents of Justices Brennan and Marshall (1996); John C. Jeffries, Jr., Justice Lewis F. Powell, Jr.: A Biography 451−52 (2001). Through the years, trial court and appellate judges have expressed regret about imposing death sentences or described them as cruel and unusual punishments. E.g., 80 The Friend: A Religious and Literary Journal 99−100 (1907) (noting that Bird Wilson, the son of American Founding Father James Wilson and a judge on Pennsylvania’s Court of Common Pleas, expressed regret for the rest of his life after imposing a death sentence as part of his judicial duties; he was once heard to exclaim of the condemned man: “He was launched into eternity unprepared; but, O God Impute it not to me ”); Kevin M. Barry, The Law of Abolition, 107 J. Crim. L. & Criminology 521 (2017) (discussing American judges who have expressed their objections to capital punishment). 236 Barry, supra note 235, at 535 (“In all, at least thirty-fve federal and state judges have concluded that the death penalty is unconstitutional per se.”). 237 Furman v. Georgia, 408 U.S. 238, 405−06 (1972) (Blackmun, J., dissenting). 238 Callins v. Collins, 510 U.S. 1141, 1145 (1994) (Blackmun, J., dissenting from denial of cert.). 239 Id. 54 Bessler actors, are already properly classifed as acts of torture.240 Capital charges and death sentences are plainly credible threats of death because they are enforced by tremendous state power. Not only do threats of death infict severe mental anguish and psychological torture on their targets,241 but they infict severe mental trauma on capital jurors,242 lawyers,243 and members of execution teams.244
240 Threats against prison guards by an inmate have themselves been found to be highly credible where the guards “were placed in fear” because of the inmate’s “ability to obtain weapons” and his gang connections within the prison. People v. Mosley, 65 Cal. Rptr. 3d 856, 864 (Cal. Ct. App. 2007). 241 11 Handbook of Psychology: Forensic Psychology 431 (Alan M. Goldstein & Irving B. Weiner eds., 2003) (“Some [death row] inmates may fnd the sustained isolation and chronic deprivation of years of solitary confnement to be so psychologically painful that the escape of death appears preferable.”); Michael L. Perlin et al., Competence in the Law: From Legal Theory to Clinical Application 94 n.536 (2008) (“It has been estimated that ‘as many as ffty percent of Florida’s death row inmates become intermittently insane.’”); see also Lynda G. Adamson, Thematic Guide to Popular Nonfiction 206 (2006) (noting that San Quentin, California, guards yelled “dead man walking” when death row inmates were out of their cells). 242 Michael E. Antonio, “I didn’t know it’d Be so Hard”: Jurors’ Emotional Reactions to Serving on a Capital Trial, 89 Judicature 282, 283−84 (2006) (“[R]eseachers studying criminal cases have identifed ‘one or more physical and/or psychological symptoms that could be related to jury duty.’ These included reoccurring thoughts about the trial that would keep the jurors awake at night or nightmares about the crime and the defendant, stomach pains, nervousness, tension, shaking, headaches, heart palpitations, sexual inhibitions, depression, anorexia, faintness, numbness, chest pain, and hives. . . . Findings showed ‘jurors whose jury panel rendered a death penalty did sustain greater PTSD [Post-Traumatic Stress Disorder] symptoms than did jurors whose jury panel rendered a life sentence.’”). 243 See generally Susannah Sheffer, Fighting for Their Lives: Inside the Experience of Capital Defense Attorneys (2013); see also 1 Appeals and Writs in Criminal Cases §6.2 (3d ed. 2017) (“The job of appellate counsel in a capital case is complicated by the wide-ranging scope and fast-changing nature of capital jurisprudence, as well as the length of the time over which the litigation will continue. In addition, the magnitude of the undertaking, including the severity of the consequences of losing the case, create a unique set of pressures.”); Sara Mayeux, Review of Fighting for Their Lives: Inside the Experience of Capital Defense Attorneys by Susannah Shefer, H-Net (Nov. 2013), http://www.h-net.org/reviews/showrev.php?id=40132 (noting that capital defenders “cycle through rage, fear, anxiety, guilt, helplessness, and numbness; they fall into ruts of depression; they work all night, drink too much, and fail through nightmares”). 244 John D. Bessler, Death in the Dark: Midnight Executions in America 147 (1997) (noting that Utah and other states have stress inoculation programs to try to prevent prison staf members from sufering VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 55
In addition, executions infict extreme mental pain or sufering on the condemned’s family and friends,245 and emotional trauma on execution eyewitnesses.246 Family members have experienced serious adverse health consequences in close proximity to the imposition or carrying out of death sentences,247 with one death row
from post-traumatic stress disorder after executions); Annmarie Timmins, Former Warden ‘Haunted’ by Executions, Concord Monitor (Aug. 13, 2010), https://www.concordmonitor.com/Archive/2010/08/999787691- 999787691-1008-CM (quoting former warden Ron McAndrew, who oversaw Florida executions, as saying, “Many colleagues turned to drugs and alcohol from the pain of knowing a man had died at their hands. And I’ve been haunted by the men I was asked to execute in the name of the state of Florida.”). 245 Sandra Joy, Grief, Loss, and Treatment for Death Row Families: Forgotten No More 212 (2014) (“There are some surviving execution witnesses who strongly regret their decision to witness, thus feel led to advise other families against witnessing subsequent executions.”); Rachel King, No Due Process: How the Death Penalty Violates the Constitutional Rights of the Family Members of Death Row Inmates, 16 B.U. Pub. Int. L.J. 195, 197−99, 209, 211−17 (2007) (describing the emotional and physical impacts of the death penalty on death row inmates’ family members, and listing migraine headaches, skyrocketing blood pressure, nightmares and sleeplessness, grief and uncontrollable crying, drug and alcohol abuse, recurring health problems, severe depression, heart attacks, and attempted suicide). 246 Robert L. Baldwin, Life and Death Matters: Seeking the Truth about Capital Punishment 205 (2009) (“Those whose jobs are part of the process of execution also sufer from long-term efects similar to post- traumatic stress disorder. Because executions are so grim, most states that allow capital punishment ofer counseling to all execution witnesses (except those related to the condemned).”); Broken Images, Broken Selves: Dissociative Narratives in Clinical Practice 68, 84 (Stanley Krippner & Susan Marie Powers eds., 1997) (citing Freinkel, A. et al., Dissociative Symptoms in Media Execution Witnesses, 151 Am. J. of Psychiatry 1335, 1335−39 (1994)) (“Freinkel et al. (1994) described that the witnessing of the execution of a convicted killer produced signifcant depersonalization among journalists observing the event.”); see also Scott Christianson, The Last Gasp: The Rise and Fall of the American Gas Chamber 182 (2010) (“San Quentin’s prison personnel became accustomed to two or three witnesses fainting during each execution, and others vomiting or otherwise breaking down under the stress.”). 247 Helen Kearney, Children of Parents Sentenced to Death, in Capital Punishment: New Perspectives 162 (Peter Hodgkinson ed., 2016) (citations omitted) (describing examples that “illustrate the extraordinary levels of stress and trauma that the children and family” of death row inmates undergo, including a father in Belarus who sufered a heart attack shortly after learning of his son’s execution and the mother of an Indiana death row inmate who overdosed after joining her son for his last meal); id. 56 Bessler inmate’s mother sufering a heart attack and a stroke after a state governor signed a death warrant.248
B. The Torturous Efects of Death Sentences and Executions Just as it is considered an act of torture to force someone to watch the rape, sexual assault, or torture of a loved one,249 it should be considered an act of torture to permit the imposition of a death sentence or the use of an execution. Capital sentences and executions infict severe psychological harm on those closest to the condemned as well as those associated with the process of state-sanctioned killing, from inmates and their family members to prison chaplains, lawyers, and executioners.250 The powerlessness of a loved one to
at 145 (“Recent studies document the serious emotional and psychological distress experienced by the children and families of death row inmates, characterized by symptoms corresponding with post-traumatic stress disorder, ambiguous loss, and complicated and disenfranchised grief.”). 248 Shirley Dicks, Six Accounts of Wrongly Convicted Prisoners on Death Row, in Congregation of the Condemned: Voices Against the Death Penalty 146, 153−54 (Shirley Dicks ed., 1995). 249 Prosecutor v. Kvocka, Case No. IT-98-30/1-T, Judgement, ¶ 149 (Int’l Crim. Trib. for the Former Yugoslavia Nov. 2, 2001) (“[T]he Furund’ija Trial Chamber found that being forced to watch serious sexual attacks inficted on a female acquaintance was torture for the forced observer. The presence of onlookers, particularly family members, also inficts severe mental harm amounting to torture on the person being raped.”) (citing Furund’ija judgment); see also Prosecutor v. Fofana, Case No. SCSL-04-14-T, Judgment, ¶ 153 (Special Court for Sierra Leone Aug. 2, 2007) (“[A] third party could sufer serious mental harm by witnessing acts committed against others, particularly against family or friends.”). 250 E.g., Walter C. Long, The Constitutionality and Ethics of Execution-Day Prison Chaplaincy, 21 Tex. J. C.L. & C.R. 1, 3 (2015) (“Execution-day chaplains work for the State, but there should be no question that they also form quick and strong emotional bonds with the men and women they are assigned to counsel and accompany to their deaths.”); Seema Kandelia & Peter Hodgkinson, The Greater Stigma? Family Visits to the Condemned, in Capital Punishment: New Perspectives 127 (Peter Hodgkinson ed., 2013) (“In Texas, at the instance of being sentenced to death, the condemned’s family become the untouchables—literally—and by implication, the entire constituency of the families of the condemned are marginalized and stigmatized. In a world where there are so many examples of cruel, inhuman and degrading treatment and punishment, Texas’s treatment of the mothers, fathers, husbands, wives, children and grandchildren of its condemned must rank high.”); Louis J. Palmer, Jr., The Death Penalty in the United States: A Complete Guide to Federal and State Laws 240 (2d ed. 2014) (noting that John Hurlbert, the executioner at New York’s Sing Sing Prison during the 1920s, executed over 120 prisoners in Sing Sing’s electric chair, but resigned in 1926 and, deeply depressed, committed suicide VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 57 prevent harm to a close relative is—and long has been—an aspect of torturous conduct,251 and the only way to eliminate such torture is to eliminate executions altogether. Just as it is an act of torture to kill a helpless or defenseless victim in the non-state actor context,252 it should be considered an act of torture to deliberately kill an inmate who is tied down on a gurney at the moment of his or her death.253
in the basement of his home three years later). American laws typically allow condemned inmates’ family members, along with a small number of “reputable” or “respectable citizens,” to attend executions. Bessler, Death in the Dark, supra note 244, at 44, 46, 72−73. And death row inmates’ family members—who, themselves, are not responsible for the particular crimes committed by the condemned inmates—sufer severe pain and sufering as a result of executions. Even if they do not actually attend an execution in person, they know when it will occur and yet will be utterly helpless to stop it. This means that death row inmates’ family members experience “anticipatory grief”—a particularly bizarre form of loss. E.g., Robert M. Bohm, DeathQuest III: An Introduction to the Theory and Practice of Capital Punishment in the United States 351 (3d ed. 2007). 251 E.g., United States v. Juvenile (I.H., Jr.), 1 F. Supp. 2d 509, 520 (D.V.I. 1998) (noting that the defendant participated “in the brutal violation” of a man’s wife “while the husband was only some few feet away, powerless to spare her from such torture”). 252 E.g., Van Tran v. Colson, 764 F.3d 594, 622−23 (6th Cir. 2014) (emphasizing that a victim’s helplessness or defenselessness, including in an “execution- style murder,” “evinces torture or depravity of mind”); Lawlor v. Commonwealth, 738 S.E.2d 847, 887 (Va. 2013) (“The psychological aspect of torture may be established, for example, ‘where the victim is in intense fear and is aware of, but helpless to prevent, impending death . . . for an appreciable lapse of time.’” (quoting Ex parte Key, 891 So. 2d 384, 390 (Ala. 2004)); State v. Davis, 318 S.W.3d 618, 643 (Mo. 2010) (en banc) (fnding evidence to support jury determination “that the murder was committed with depravity of mind because the crime involved binding Ms. Spicer, subjecting her to repeated acts of gruesome physical and sexual torture with the purpose of promoting her death, and that Mr. Davis killed or aided in killing Ms. Spicer while she was bound helplessly, thereby exhibiting a callous disregard for human life”); State v. Frye, 461 S.E.2d 664, 680 (N.C. 1995) (fnding the defendant’s crime involved “psychological torture”). 253 Clive Stafford Smith, Injustice: Life and Death in the Courtrooms of America 29−40 (2012) (“Over the years I have watched six of my clients die: two in the electric chair, two in the gas chamber and two on the lethal injection gurney.”); id. (“It always happens at night, in darkness. I have never been able to decide whether it matters how they do it, since the prisoner ends up dead anyway. In one sense the gurney is most surreal, since the scene is meant to emulate a clinical setting, yet the prisoner is strapped down in the shape of a cross, his arms wide to give room for the needle. Sometimes the prison staf take ten minutes, twenty minutes, three-quarters of an hour probing the prisoner’s arm, trying to fnd 58 Bessler
The Convention Against Torture specifcally prohibits both physical and psychological torture, so the U.S. Supreme Court should no longer focus only on the risk of maladministration of lethal-injection drugs and the potential for excruciating physical pain at the very moment of an inmate’s execution, as it did in Baze v. Rees254 and Glossip v. Gross.255 Instead, the Supreme Court should use the modern defnition of torture and broaden its focus to examine the psychological terror and self-evident mental torture associated with death sentences and executions.256 Mental torture is just as bad as physical torture, and both mental and physical torture are prohibited in the Convention Against Torture and similar human rights instruments.257 There is simply no legitimate justifcation to condemn one form of torture (i.e. the physical) while tolerating another (i.e. the psychological). A person experiences severe psychological sufering when that person is incapacitated and helpless to prevent his or her death,258 and that is true for any person, regardless of what that person may have done—or not done—in the past. Already, threats of violence and death threats can form the basis of an intentional infiction of emotional distress (“IIED”) claim259 because they infict
a vein.”). 254 Baze v. Rees, 553 U.S. 35 (2008). 255 Glossip v. Gross, 135 S. Ct. 2726 (2015). 256 Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1251 (11th Cir. 2005) (“When courts seek to defne torture in international law, they often look to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment . . . . Accordingly, we, for ATA [Alien Tort Act] purposes, too look to the Convention when deciding what constitutes torture according to the law of nations.”). 257 See supra text accompanying notes 4−5; see also Elizabeth A. Sheehy, Defending Battered Women on Trial: Lessons from the Transcripts 259 (2014) (“Psychological torture causes as much mental and traumatic stress as physical torture, and it amplifes brain injuries, making it more difcult to treat for depression and anxiety those who have experienced both.”). 258 Smith v. State, 122 So. 3d 224, 242 (Ala. 2011) (“After the initial gunshots rendered Smith helpless to prevent her death she sufered great psychological torture as she listened to her abductors discuss how they were going to kill her and dispose of her body while she begged for medical attention.”). 259 Harris v. Cellco Partnership, No. 5:15-cv-529-Oc-30PRL, 2016 WL 232235, at *3 (M.D. Fla. Jan. 15, 2016) (“In cases where Florida courts have permitted a plaintif to move forward with an IIED claim, they often involve threats of death, rape, or severe bodily harm to the plaintif or family members of the plaintif.”); Allam v. Meyers, No. 09-cv-10580 (KMW), 2011 VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 59 severe emotional distress and are considered to be “outside the bounds of decency.”260 And such threats can also be torturous when those threats are credible ones—as death threats made in the death penalty context naturally and inevitably are when one considers their immutable characteristics. In American jurisprudence, “forms of torture” already include “mock executions by placing a gun” in someone’s mouth “and pulling the trigger.”261 Likewise, the use of Russian roulette during interrogation has been found to be a
WL 721648, at *10−11 (S.D.N.Y. Feb. 24, 2011) (allowing IIED claim based on a “fve month-long, deliberate and malicious campaign of harassment and intimidation” that included “threats of violence” and death threats, as well as “relentless humiliation and emotional abuse”); Eves v. Ray, 840 N.Y.S.2d 105, 106 (App. Div. 2007) (sustaining verdict for defendant on IIED counterclaim where, “on several occasions,” plaintif “threatened the defendant both physically and fnancially, and stalked him”); Nims v. Harrison, 768 So. 2d 1198, 1201 (Fla. Dist. Ct. App. 2000) (fnding “as a matter of law” that “Nims’ complaints state a cause of action for intentional infiction of mental distress”; high school teacher stated cause of action against students for IIED where students participated in production and distribution of newsletter that threatened to kill teacher and to rape her and all of her children); Household Credit Servs., Inc. v. Driscol, 989 S.W.2d 72, 81−82 (Tex. App. 1998) (general pattern of harassing behavior, including bomb and death threats, constituted extreme and outrageous behavior that could give rise to IIED claim); Behringer v. Behringer, 884 S.W.2d 839, 842, 844−45 (Tex. App. 1994) (allowing IIED claim where evidence of death threats included talk of hiring a hit man, and where there were threats that a husband would be beaten up and, as a result of the death threats and the wife’s actions, the husband “was in fear of his life every day, all the time”). 260 E.g., Barrios v. Elmore, No. 3:18-cv-132-DJH-RSE, 2018 WL 3636576, at *4 (W.D. Ky. Ct. App. July 31, 2018) (denying motion to dismiss IIED claim, with the court fnding threats to someone’s life “to be sufciently outside the bounds of decency to be considered outrageous”); see also Tania Tetlow, Criminalizing “Private” Torture, 58 Wm. & Mary L. Rev. 183, 233−34 (2016) (“‘Psychological torture’ should be defned, with reference to the tort of intentional infiction of emotional distress, as ‘the use of extreme and outrageous conduct to intentionally cause severe emotional distress.’”); id. at 238 (“IIED allows civil damages for ‘outrageous’ behavior resulting in ‘extreme emotional distress.’”). 261 Cannon v. Burge, No. 05 C 2192, 2006 WL 273544, at *3 (N.D. Ill. Feb. 2, 2006); see also Massie v. Gov’t of North Kor., 592 F. Supp. 2d 57, 64, 66 (D. D.C. 2008) (describing a mock execution and men held in captivity who “endured individual threats of death, threats to kill others, severe beatings, torture, both physical and mental, and other means of coercion”). Compare Zalewski v. City of New York, No. 1:13-CV-7015 (ARR) (PK), 2018 WL 5113137, at *7 (E.D.N.Y. Oct. 19, 2018) (“Courts in this circuit have found that ‘verbal threats, combined with the brandishing of [a] weapon, could be unreasonable and therefore constitute excessive force.’”) (citations omitted). 60 Bessler
form of torture,262 as have “threats to kill” and “the anticipation of physical harm to one’s self or a loved one.”263 If a threat to kill an inmate in one context (i.e. where a prison guard makes the threat) is torturous, then a threat to kill an inmate in another context (i.e. where the judicial system makes the threat) should also be classifed as torturous. In the twenty-frst century, the universal rights to human dignity and life and to be free from cruelty and torture should take center stage in the modern death penalty debate.
C. The Importance of Human Dignity Not only are death threats torturous in nature, but they are unnecessary264 and utterly inconsistent with the right to life265 and
262 In re Estate of Marcos Human Rights Litig., 910 F. Supp. 1460, 1463 (D. Haw. 1995). This case also found “[s]olitary confnement while handcufed or tied to a bed” to be a form of torture. Id. 263 State v. Hall, 8 S.W.3d 593, 601 (Tenn. 1999) (“This Court has repeatedly held that the anticipation of physical harm to one’s self or a loved one constitutes mental torture. The evidence here clearly supports a fnding of mental torture.”) (citations omitted). 264 A core principle of the Enlightenment—one articulated by Cesare Beccaria, Montesquieu and others centuries ago—was that any punishment that goes beyond “absolute necessity” is “tyrannical.” Bessler, The Death Penalty as Torture, supra note 26, at 37, 255; see also John D. Bessler, The Celebrated Marquis: An Italian Noble and the Making of the Modern World 7, 217−18 (2018) (discussing Montesquieu’s and Beccaria’s views of necessity as the justifcation for punishment); John D. Bessler, The Baron and the Marquis: Liberty, Tyranny, and the Enlightenment Maxim that Can Remake American Criminal Justice (2019) (discussing the history and modern-day implications of the maxim penned by Montesquieu—and then publicized by Beccaria—that any punishment not grounded in necessity is “tyrannical”). In a world of maximum-security prisons, and in which life-without-possibility-of-parole sentences are authorized by law, it cannot be said that death sentences or executions are necessary, let alone absolutely necessary. John D. Bessler, The Birth of American Law: An Italian Philosopher and the American Revolution 439 (2014). 265 Capital Punishment: Global Issues and Prospects 18−19 (Peter Hodgkinson & Andrew Rutherford eds., 1996) (“The original draft of the Universal Declaration, prepared by John P. Humphrey in early 1947, recognized a right to life that ‘can be denied only to persons who have been convicted under general law of some crime to which the death penalty is attached’. But Eleanor Roosevelt, who chaired the Drafting Committee, cited movement underway in some states to abolish the death penalty, and suggested that it might be better not to make any explicit mention of the matter. René Cassin reworked Humphrey’s draft and removed any reference to the death penalty. Cassin’s proposal found its way, virtually unchanged, VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 61 the notion of human dignity.266 Human dignity has long been called the “touchstone” of the U.S. Constitution’s Eighth Amendment,267 and dignity is also a central value of international law. As the U.N. Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment puts it:
into the fnal version of the Declaration, despite some subsequent attempts to return to the original proposal. It is clear from the travaux préparatoires that the death penalty was considered to be incompatible with the right to life, and that its abolition, although not immediately realizable, should be the goal of Member states. Subsequent interpretations, by General Assembly and Economic and Social Council resolutions, support this conclusion.”) (italics in original). 266 Juan E. Méndez, The Death Penalty and the Absolute Prohibition of Torture and Cruel, Inhuman, and Degrading Treatment or Punishment, 20 Hum. Rts. Brief 2, 5 (2012) (“I believe it is necessary for the international community to discuss this issue further and for states to reconsider whether the death penalty per se fails to respect the inherent dignity of the human person and violates the prohibition of torture or CIDT.”); see also Identoba v. Georgia, App. No. 73235/12, Eur. Ct. H.R. ¶¶ 69−71 (2015) (citations omitted) (where, during a march conducted to mark the International Day Against Homophobia, LGBT people in Georgia were subjected to death threats, the European Court of Human Rights wrote of the target of those threats: “Given that they were surrounded by an angry mob that outnumbered them and was uttering death threats and randomly resorting to physical assaults, demonstrating the reality of the threats, . . . the situation was already one of intense fear and anxiety. . . . [T]he Court concludes that the treatment of the applicants must necessarily have aroused in them feelings of fear, anguish and insecurity, which were not compatible with respect for their human dignity and reached the threshold of severity within the meaning of Article 3 taken in conjunction with Article 14 of the Convention.”). 267 Trop v. Dulles, 356 U.S. 86, 100 (1958) (“The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards.”); see also Moore v. Texas, 137 S. Ct. 1039, 1048 (2017) (quoting Hall, 134 S. Ct. at 1992) (“The Eighth Amendment prohibits ‘cruel and unusual punishments,’ and ‘reafrms the duty of the government to respect the dignity of all persons.’”)); Hall v. Florida, 134 S. Ct. 1986, 1992 (2014) (quoting Weems v. United States, 217 U.S. 349, 378 (1910) & Trop, 356 U.S. at 101) (“The Eighth Amendment ‘is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice.’ To enforce the Constitution’s protection of human dignity, this Court looks to the ‘evolving standards of decency that mark the progress of a maturing society.’”)); Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (referring to “the fundamental respect for humanity underlying the Eighth Amendment”). 62 Bessler
Any act of torture or other cruel, inhuman or degrading treatment or punishment is an ofence to human dignity and shall be condemned as a denial of the purposes of the Charter of the United Nations and as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights.268
In Brown v. Plata,269 the U.S. Supreme Court itself made clear that ofenders do not lose their right to human dignity by virtue of their incarceration. As Justice Anthony Kennedy wrote for the Supreme Court in that case: “To incarcerate, society takes from prisoners the means to provide for their own needs. Prisoners are dependent on the State for food, clothing, and necessary medical care. A prison’s failure to provide sustenance for inmates ‘may actually produce physical ‘torture or a lingering death.’”270 “A prison that deprives prisoners of basic sustenance, including adequate medical care,” Justice Kennedy emphasized, “is incompatible with the concept of human dignity and has no place in civilized society.”271 In a world of universal human rights, inmates and even heinous ofenders, just like everyone else, have a right to be free from torture and from cruel, inhuman, or degrading treatment.272
268 Declaration on the Protection of All Persons, supra note 22, at 91. The preamble to the U.N. Charter, signed in 1945, the year World War II came to a close, explicitly recites that one of its purposes is “to reafrm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small.” U.N. Charter pmbl. 269 Brown v. Plata, 563 U.S. 493 (2011). 270 Id. at 510 (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976) (quoting In re Kemmler, 136 U.S. at 447)); see also Estelle, 429 U.S. at 103 (citation omitted) (“An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met. In the worst cases, such a failure may actually produce physical ‘torture or a lingering death,’ the evils of most immediate concern to the drafters of the [Eighth] Amendment.”). 271 Brown, 563 U.S. at 511. 272 John D. Bessler, The Inequality of America’s Death Penalty: A Crossroads for Capital Punishment at the Intersection of the Eighth and Fourteenth Amendments, 73 Wash. & Lee L. Rev. Online 487, 555 (2017); Liesel J. Danjczek, The Mentally Ill Ofender Treatment and Crime Reduction Act and Its Inappropriate Non- Violent Ofer Limitation, 24 J. Contemp. Health L. Pol’y 69, 97 (2007); see also United Nations Office on Drugs and Crime, Handbook for Prison Leaders: A Basic Training Tool and Curriculum VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 63
Death sentences and execution protocols, like other acts of torture, dehumanize individuals and strip ofenders of their humanity, however tarnished by whatever crimes they have committed in the past.273 The Convention Against Torture plainly requires that nations prevent and criminalize torture,274 envisioning the elimination of torturous punishments in accordance with the dictates of that convention and the humanitarian impulses
for Prison Managers Based on International Standards and Norms 27 (2010) (noting that certain rights “are non-derogable, meaning that they must be fully respected at all times and in all circumstances” and listing “the right to life, the right to be free from torture and other cruel, inhuman or degrading treatment” as among those rights; “[p]rison ofcials are responsible for ensuring that they do not violate any of these rights”). 273 David Rose, Executions Dehumanize Everyone, Pitt. Post-Gazette (Sept. 27, 2015), http://www.post-gazette.com/opinion/Op-Ed/2015/09/27/Having- worked-in-corrections-for-decades-I-hope-Pennsylvania-abolishes-the-death- penalty/stories/201509270109. 274 Nigel Rodley & Matt Pollard, Criminalisation of Torture: State Obligations Under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Eur. Hum. Rts. L. Rev. 115 (2006). Various provisions of law around the world punish torturous acts, though laws proscribing torture vary widely in the actual punishments they impose. See generally Daniel O’Donnell, The Obligation to Establish Sentences for Torture that Are Commensurate with the Gravity of the Ofense, 22 Buff. Hum. Rts. L. Rev. 95 (2016) (describing legal provisions in various countries that criminalize and punish torture); see also 18 U.S.C. § 114 (1996) (“Whoever, within the special maritime and territorial jurisdiction of the United States, and with intent to torture (as defned in section 2340), maim, or disfgure, cuts, bites, or slits the nose, ear, or lip, or cuts out or disables the tongue, or puts out or destroys an eye, or cuts of or disables a limb or any member of another person; or[,] Whoever, within the special maritime and territorial jurisdiction of the United States, and with like intent, throws or pours upon another person, any scalding water, corrosive acid, or caustic substance— Shall be fned under this title or imprisoned not more than twenty years, or both.”). 64 Bessler behind it.275 In Kennedy v. Louisiana,276 the U.S. Supreme Court, in considering an Eighth Amendment case, forthrightly proclaimed: “Evolving standards of decency must embrace and express respect for the dignity of the person, and the punishment of criminals must conform to that rule.”277 “When the law punishes by death,” Justice Anthony Kennedy wrote for the Court, “it risks its own sudden descent into brutality.”278 In declaring the use of the electric chair to be unconstitutional, the Nebraska Supreme Court said something quite similar, with that court writing in 2008: “We recognize the temptation to make the prisoner sufer, just as the prisoner made an innocent victim sufer. But it is the hallmark of a civilized society that we punish cruelty without practicing it. Condemned prisoners must not be tortured to death, regardless of their crimes.”279
D. The Coercive Nature (and Distorting Efects) of Death Threats The use of any death threat, whether by a state actor or a non-state actor, should raise an immediate red fag because credible death threats, as shown, are already classifed as torturous acts.280 In fact, threats of death are serious enough that, in civil cases and the application of the criminal law, they can be the basis of a duress defense.281 For example, where threats of death were made in the
275 Not surprisingly, American law already expressly states that the purpose of the Convention Against Torture is to prohibit torture. 8 C.F.R. § 208.18(a) (3) (2018) (noting that the “object and purpose” of the Convention Against Torture is “to prohibit torture”); see also Ashika Singh, The United States, the Torture Convention, and Lex Specialis: The Quest for a Coherent Approach to the CAT in Armed Confict, 47 Colum. Hum. Rts. L. Rev. 134, 151 (2016) (noting a Swiss cable emphasizing that “the Convention Against Torture . . . has as its sole purpose the protection against torture”). As criminologist Robert Johnson, of American University, writes of the importance of human dignity in punishment practices: “Punishment that dehumanizes is itself a crime; punishment that respects the human dignity of the criminal is justice. In the matter of crime and just punishment, criminals dehumanize their victims but, ideally, the punishments meted out in society’s name do not dehumanize the criminals.” Robert Johnson, Refections on the Death Penalty: Human Rights, Human Dignity, and Dehumanization in the Death House, 13 Seattle J. for Soc. Just. 583, 587 (2014). 276 Kennedy v. Louisiana, 554 U.S. 407 (2008). 277 Id. at 420. 278 Id. 279 State v. Mata, 745 N.W.2d 229, 279 (Neb. 2008). 280 See Paust et al., supra note 40. 281 See Bacigalupo v. Santoro, No. 94-cv-02761-BLF, 2018 WL 6272238, at *12 VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 65 context of a divorce decree, the defense of duress was found to be “an issue of fact to be disposed of at the trial.”282 Death threats
(N.D. Cal. Nov. 30, 2018) (“Central to a defense of duress is the immediacy of the threat or menace on which the defense is premised.”); In re Chiquita Brands Int’l, Inc., 284 F. Supp. 3d 1284, 1324 (S.D. Fla. 2018) (holding that the duress defense “is narrowly construed, and viable only if defendant can show that he or she acted under an immediate threat of death or serious bodily injury at the time the conduct occurred; that he or she had a well- grounded fear that the threat would be carried out, and that he or she had no reasonable opportunity to escape or inform the police”); Cormier v. State, 540 S.W.3d 185, 190 (Tex. Ct. App. 2017) (quoting Tex. Penal Code § 8.05(a) (1994)) (“Duress is an afrmative defense that applies if the defendant ‘engaged in the proscribed conduct because he was compelled to do so by threat of imminent death or serious bodily injury to himself or another.’”); Oliver v. Ameriquest Mortg., No. 301444, 2012 WL 284618, at *3 (Mich. Ct. App. Jan. 31, 2012) (“[D]eath threats could potentially support a fnding of duress . . . .”); Kristen Cherry, Comment, Marriage and Divorce Law in Pakistan and Iran: The Problem of Recognition, 9 Tulsa J. Comp. & Int’l L. 319, 330 (2001) (“If consent needed for the khul is obtained by duress, the divorce is void. Such duress must be of a serious nature such as threats of death, bodily harm, or captivity.”); see also People v. Speer, 255 P.3d 1115, 1119 (Colo. 2011) (en banc) (discussing statutory defense of duress based on conduct resulting from “the use or threatened use of unlawful force” and applying “an objective standard of reasonableness,” said to exculpate “only for threats that a reasonable person would not have been able to resist”); People ex rel. Rusch v. Rivlin, 277 Ill. App. 183, 186 (1934) (citation omitted) (“‘The compulsion which will excuse a criminal act . . . must be present, imminent, and impending, and of such a nature as to induce a well grounded apprehension of death or serious bodily harm if the act is not done. A threat of future injury is not enough.’”). Compare People v. Anderson, 50 P.3d 368, 376 (Cal. 2002) (“The reasons a person acted in a certain way, including threats of death, are highly relevant to whether the person acted with a conscious or wanton disregard for human life.”), with State v. Davis, No. A07-0331, 2008 WL 2020402, at *5 n.1 (Minn. Ct. App. May 13, 2008) (noting that, in Minnesota, duress is a statutory defense that applies when a person “commits a crime because his will has been overborne by threats of death from another participant in the crime”), and Geert-Jan Alexander Knoops, Defenses in Contemporary International Criminal Law 98 (2d ed. 2008) (“Psychological threats, which amount to imminent death or serious bodily harm, may trigger the defense of necessity.”). 282 In re Kittinger’s Estate, 101 N.Y.S.2d 844, 847 (Sur. Ct., N.Y. County, N.Y. 1950). Accord McIntosh v. McIntosh, 26 Cal. Rptr. 26, 27−28 (Cal. App. 1962) (“[W]e are satisfed that the trial court was justifed in fnding that plaintif was coerced into writing the waiver by fear of personal injury or death at the hands of defendant; that said fear was induced by the beating of November 13, 1959, coupled with the subsequent threats of defendant; that the waiver was not the voluntary act of plaintif and was invalid.”). 66 Bessler have been used to set aside a state court judgment,283 and threats of death—in both the civil and the criminal contexts—can be highly pertinent to a duress defense’s viability and legitimacy.284 Death threats are inherently coercive. They have been recognized as such since time immemorial, and that is so because death threats remove a person’s ability to make voluntary decisions based on free will. Thus, in Avco Financial Services, Inc. v. Johnson,285 the Supreme Court of Utah, citing an earlier precedent, put it this way: “In Fox v. Piercey,286 this Court reviewed the development of the law of duress since the time of Lord Coke, when only threats of death, dismemberment, mayhem or imprisonment were recognized as coercive actions constituting duress.”287 “In that case,” Utah’s highest court observed, “we followed the modern trend, and adopted the ‘subjective’ test, holding that ‘any wrongful act or threat which actually puts the victim in such fear as to compel him to act against his will constitutes duress.’”288 Death threats made to someone in police custody, it is important to remember, can easily produce false confessions, with such threats—whether made by police ofcers or prosecutors—leading individuals to make incriminating statements or plead guilty to crimes they have not committed.289
283 In re Slater, 200 B.R. 491, 496 (Bankr. E.D.N.Y. 1996) (“[T]he Debtor’s allegations that her brother physically assaulted her and threatened her life before and during the trial . . . does constitute extrinsic fraud sufcient to attack the state court judgment.”). 284 Rowley v. Rowley, 290 P. 181, 184 (Okla. 1930) (“Certainly, a threat to the efect that her husband would kill her and her baby would be sufcient to justify execution of an instrument, if she honestly believed the threat would be carried into execution did she not sign it. The fact that she soon thereafter secured a divorce from her husband, on grounds of extreme cruelty and threats to kill, corroborates her statements and justifes her belief that in all probability his threats would be executed.”); cf. Hofman v. Hofman, 30 Pa. 417, 420 (Pa. 1858) (“There were no threats of death or bodily harm, which constitutes duress per minas in the case.”). 285 Avco Fin. Servs., Inc. v. Johnson, 596 P.2d 658 (Utah 1979). 286 Fox v. Piercey, 227 P.2d 763 (Utah 1951). 287 Avco Fin. Servs., Inc., 596 P.2d at 660 (citing Fox, 227 P.2d at 766). 288 Id. (quoting Fox, 227 P.2d at 766). 289 Examples of false confessions in the death penalty context are not hard to fnd. The Witness Stand and Lawrence S. Wrightsman, Jr. 60 (Cynthia Willis-Esqueda & Brian H. Bornstein eds., 2016) (citation omitted) (“[M]ore than 300 people in the United States have been exonerated by DNA, including several who served time on death row. To everyone’s astonishment, false confessions have been a contributing factor in over 25% of these wrongful convictions.”); Rob Warden, Illinois Death Penalty Reform: How It Happened, What It Promises, 95 J. Crim. L. & Criminology VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 67
E. Death Row, “Mock” Executions, and Threats to Life or Bodily Integrity Death row inmates endure prolonged periods of confnement in harsh conditions. They confront the prospect of death on a daily basis, inevitably experiencing extreme uncertainty and anxiety as the days and months and years go by and as all the capital litigation and pleas for mercy occur. They are confned in small, spartan cells, and they often wait for death for years, even multiple decades, as their attorneys press their legal claims. The waiting and anxiety can be torturous, especially as it is so prolonged,290 though threats of death—all by themselves—meet the torture threshold because of their inherent features. As one recent study put it: “Common methods of psychological torture involve threats to the victim or the victim’s loved ones, isolation or solitary confnement, sleep and sensory deprivation, exposure to loud noise, or forcing a victim to watch or participate in the torture of others.”291 “A typical example,”
381, 382−83 (2005) (noting that false confessions and snitch testimony were the two most common causes of error in Illinois exoneration cases); see also True Stories of False Confessions vii, 147 (Rob Warden & Steven A. Drizin eds., 2009) (“false confessions are amazingly common”; “the death penalty can be misused to intimidate an innocent person into making a false confession”); Dale S. Recinella, The Biblical Truth about America’s Death Penalty 133 (2004) (“False confessions can also be easily obtained from the mentally ill.”); David V. Baker, Women and Capital Punishment in the United States: An Analytical History 181 (2016) (“False confessions are a signifcant factor in female wrongful convictions; slightly more than one-ffth of female wrongful convictions involve false confessions.”). 290 Robert Johnson, Death Work: A Study of the Modern Execution Process 196 (1998) (“It is his confnement, culminating in the deathwatch and ending with his execution, that epitomizes death row confnement. This confnement-unto-death, I will argue, is a clear and complete case of torture.”); cf. Habtemicael v. Ashcroft, 370 F.3d 774, 782 (8th Cir. 2004) (citations omitted) (“An unlawful or extrajudicial threat of imminent death comes within the defnition of torture if it is specifcally intended to bring about prolonged mental pain or sufering. This intent requirement is satisfed if prolonged mental pain or sufering either is purposefully inficted or is the foreseeable consequence of a deliberate act.”). 291 Ashley McCulley, The Physical and Psychological Sequelae in Adult Refugees or Asylum Seekers Who Have Survived Torture 8 (2013), https://ethnomed.org/clinical/torture/torture- literature-review/AshleyMcCulley_Dec2013_fnal.pdf (“The most common types of psychological torture . . . were threats, witnessing torture, mock execution, humiliation, and sensory, hygiene, or sleep deprivation.”); id. (“Psychological sequelae are also a result of physical torture methods. For example, waterboarding is a physical torture method that simulates 68 Bessler
Dr. Hernán Reyes, of the International Committee of the Red Cross, writes of psychological torture, “is the ‘sham execution,’ a method known to be extremely traumatic in which prisoners are led out to what they believe is their summary execution.”292 “Verbal threats of death or mutilation” and “[t]hreats involving others (family etc.)” have elsewhere been labeled as forms of psychological torture,293 along with “[t]hreats of being killed or infiction of serious injury” and “[t]hreats of separation from, torture of or killing of family members.”294 Mock executions, as a matter of fact, have been shown by researchers to be as severe as various physically torturous acts.295 In a study of torture conducted by Metin Başoğlu of King’s College London, Başoğlu and his colleagues surveyed 279 torture survivors—both soldiers and civilians—from the once war-torn former Yugoslavia.296 Between 2000 and 2002, those survivors answered questions about the types of torture that they endured.297
drowning, but the sheer terror of feeling like you are going to die produces psychological sequelae. Merging both physical and psychological torture methods leaves survivors with relentless long-term psychological sequelae.”). 292 Hernán Reyes, The Worst Scars Are in the Mind: Psychological Torture, 89 Int’l Rev. of the Red Cross 591, 600, 611−12 (2007). 293 Caroline Gorst-Unsworth & Eva Goldenberg, Psychological Sequelae of Torture and Organised Violence Sufered by Refugees from Iraq, 172 British J. Psychiatry 90, 92 (1998), https://www.cambridge.org/core/services/aop- cambridge-core/content/view/8772F08B130FC04BC6A2E29D407DA3C2/ S0007125000149244a.pdf/psychological_sequelae_of_torture_and_ organised_violence_sufered_by_refugees_from_iraq.pdf. 294 Engelke Randers, Torture; Mental Sequelae and Treatment Approaches—Are These Applicable in Low-Income Countries?, Universitetet i Oslo 8, https:// www.duo.uio.no/bitstream/handle/10852/29693/ProsjektxRanders. pdf?sequence=2 (last visited Oct. 25, 2018). 295 E.g., Linda Piwowarczyk, Seeking Asylum: A Mental Health Perspective, 16 Geo. Immigr. L.J. 155, 162 (2001) (footnote omitted) (“Partly in response to more aggressive human rights monitoring, methods of torture have evolved to become more psychological in nature, thereby leaving fewer physical signs. This shift is alarming in view of the experience from the Center for Victims of Torture in Minneapolis that indicated that greater psychological damage is inficted by methods such as sham executions, sexual torture, prolonged arbitrary detention, especially with sensory deprivation, disappearance of a loved one, threats against family members, and witnessing the torture of others.”). 296 Roxanne Khamsi, Psychological Torture ‘as Bad as Physical Torture’, New Scientist (Mar. 5, 2007), https://www.newscientist.com/article/dn11313- psychological-torture-as-bad-as-physical-torture/. 297 Id. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 69
In particular, they were asked to rate the distress they felt on a scale of zero (no distress) to four (maximum distress). About 20 of the survivors experienced purely psychological torture, including sham executions, the torture of family members, or threats of rape, and the researchers collected medical data on whether the survivors showed signs of Post-Traumatic Stress Disorder (“PTSD”).298 The study found that psychological manipulations—threats and witnessing the torture of others—were ranked very high on the scale.299 Sham executions (3.7), witnessing torture of close ones (3.6), threats of rape (3.6), threats against family (3.4), witnessing torture of others (3.4), threats of death (3.3), and threats of further torture (3.2) were rated in an essentially equivalent manner on the distress scale to these forms of physical torture: hanging by the wrists tied at the back (3.8),300 sufocation/asphyxiation (3.8), electric torture (3.7), falaga (3.6),301 burning parts of the body (3.6), forced extraction of teeth (3.6), stretching of the body (3.5), beating (3.5), hanging by hands or feet (3.5), needles under toenails or fngernails (3.4), beating over the ears with cupped hands (3.4), and pulling/dragging/lifting by hair (3.2).302 It is now clear that those who endure physical threats
298 Id. In 2013, the American Psychiatric Association revised the diagnostic criteria for PTSD in the ffth edition of its Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”), a professional manual cited by the U.S. Supreme Court in a recent case dealing with the issue of intellectual disability. Moore v. Texas, 137 S. Ct. 1039, 1045 (2017). In the DSM-5, PTSD is included in a new category titled “Trauma- and Stressor-Related Disorders.” One of the criteria for a PTSD classifcation includes exposure to death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence in any of the following ways: direct exposure, witnessing the trauma, learning that a relative or close friend was exposed to a trauma, or indirect exposure to aversive details of the trauma in the course of professional duties (e.g., frst responders, medics). PTSD: National Center for PTSD, U.S. Dep’t of Veterans Affairs, https://www.ptsd.va.gov/ professional/PTSD-overview/dsm5_criteria_ptsd.asp (last updated Feb. 22, 2018). 299 Khamsi, supra note 296. 300 Cullen Murphy, God’s Jury: The Inquisition and the Making of teh Modern World 91 (2012) (hanging by the wrists tied at the back is also known, among other things, as “reverse hanging”). 301 Falaga involves beating the soles of the feet. Darius Rejali, Torture and Democracy 274 (2007). 302 Khamsi, supra note 296. In speaking about the results of the study’s fndings, Dr. Basoglu—a psychiatrist and specialist in trauma studies—made clear that the distinction between physical and psychological torture was artifcial. “Until now, both sides of the debate have expressed opinions based on personal impressions,” Basoglu emphasized. “But these data,” he added, 70 Bessler and psychological torture experience severe pain and sufering, commonly developing major depressive disorder and PTSD.303
V. Taking Psychological Torture Seriously
A. Death Threats as a Form of Psychological Torture Psychological torture is just as abhorrent as physical torture.304 It is, however, sometimes more difcult to identify because the signs of it may not be discernible with the human
“clearly suggest that you cannot make a distinction between physical forms of torture and something else called ‘cruel and degrading treatment.’” Nicholas Bakalar, The Line Between Torture and Cruelty, N.Y. Times (Mar. 6, 2007), http://www.nytimes.com/2007/03/06/health/psychology/06tort. html. 303 Kabba v. Mukasey, 530 F.3d 1239, 1242 (10th Cir. 2008). Psychological torture is itself a common feature of domestic violence and rape, which may or may not involve the loss of life. E.g., Sneed v. Johnson, No. 1:04CV588, 2007 WL 709778, at *59 (N.D. Ohio Mar. 2, 2007) (quoting report of Dr. Smalldon) (“Psychological torture often accompanied the rapes. For example, David recalls the man threatening that his dog ‘would eat [David] up’ if he refused to do what he was told.”); People v. Cofman, 96 P.3d 30, 54 (Cal. 2004) (“Certain features of defendants’ relationship ft the profle of a battering relationship: a pattern of escalating violence, sexual abuse within the relationship, jealously, psychological torture, threats to kill . . . .”); State v. Anthony, 555 S.E.2d 557, 597 (N.C. 2001) (“[T]he evidence showed that Semantha had an ex parte domestic violence order served on defendant shortly before her murder and made statements to several witnesses that defendant had threatened and followed her and that she feared him. Semantha even saw defendant slowly driving past the hair salon she was patronizing just hours before her murder. This evidence supports the inference that Semantha experienced psychological unease and fear before her murder.”). 304 In the U.S., emotional and psychological harms are not currently treated as seriously as physical harms within prisons. E.g., Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 807 (10th Cir. 1999); Brooks v. Humphrey, No. 5:12-CV- 281 (CAR), 2012 WL 5866293, at *3 n.11 (M.D. Ga. Nov. 19, 2012) (citing 42 U.S.C. § 1997e(e) (1996)) (“Plaintif could not recover compensatory or punitive damages for the ‘mental, emotional, and psychological’ harm caused by his placement within range of Watson’s ‘daily and constant barrage of death threats.’ An inmate in prison who fles a federal civil action cannot recover damages on the basis of mental or emotional injury sufered while in custody without demonstrating a related physical injury.”). The Prison Litigation Reform Act, enacted in 1996, has made it more difcult for prisoners to recover compensatory damages for psychological sufering. John Boston & Daniel E. Manville, Prisoners’ Self-Help Litigation Manual 528 (4th ed. 2010). That federal law, however, does not change the well-settled defnition of torture. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 71 eye. In Psychological Torture: Defnition, Evaluation and Measurement, one expert, Pau Pérez-Sales, begins that scholarly monograph by labeling “the concept of torture (especially psychological torture)” as “elusive and blurred.”305 “There is not an ofcial defnition of or consensus on the meaning of psychological torture,” Pérez-Sales emphasizes.306 But that source nonetheless relays how various types of threats—from threats of death to threats against family members, and from threats of inficting pain to threats to rape loved ones—have previously been classifed as methods of torture.307 The New York- based Center for Constitutional Rights, in a report on Guantánamo, has itself classifed the following techniques as psychological torture: “Solitary confnement, light and sound manipulation, exposure to the elements and to extreme temperature, . . . sleep deprivation, and threats of transfer for torture in another country.”308 Courts have not always found death threats sufcient to constitute torture, with not every threat of death found to be credible or specifc enough to qualify as such.309 One of the horrifying features of death threats, though, is the sheer uncertainty of knowing if, or when, they will be carried out.310 For example, as one California
305 Pau Pérez-Sales, Psychological Torture: Definition, Evaluation and Measurement 2 (2017). 306 Id. at 7. 307 Id. at 120. 308 Id. at 7. Pérez-Sales considers “psychological torture to be the use of techniques of cognitive, emotional or sensory attacks that target the conscious mind and cause psychological sufering, damage and/or identity breakdown in most subjects subjected to them; such techniques may be used alone or together with other techniques to produce a cumulative efect.” Id. at 8; see also Edward Domovitch et al., Human Torture: Description and Sequelae of 104 Cases, 30 Can. Fam. Physician 827 (1984) (conducting a study of 104 torture victims and noting that common methods of torture included threats of death and sham executions); Katherine J. Eder, The Importance of Medical Testimony in Removal Hearings for Torture Victims, 7 DePaul J. Health Care L. 281, 283 (2004) (footnote omitted) (“Common threats of psychological torture include isolation, threats, humiliation, sham executions, and witnessing the torture of others. Rape and sexual assault are also forms of torture commonly practiced during arrest or imprisonment or during conficts.”). 309 United States v. Rodriguez-Vasquez, 4 F. Supp. 3d 1146, 1154 (N.D. Cal. 2013) (“The Court is aware of no case—and the defendant cites none—holding that death threats alone constitute torture under the CAT standard. The receipt of these threats after he returned to Honduras, while undoubtedly disturbing, does not support the defendant’s claim that he could have established a plausible claim of torture prior to removal.”). 310 People v. Holt, 937 P.2d 213, 263 (Cal. 1997) (“The crime undoubtedly inficted mental torture as well as physical violence on the victim who 72 Bessler appellate court has written: “While a victim of domestic violence and continuing death threats might well suspect she will be attacked sometime in the future, she has no way of knowing exactly when or where that attack will occur.”311 Threats of death are thus often closely associated with—indeed, equivalent to and part and parcel of—torturous conduct.312 “Death threats are patently material to the grave risk analysis,” another California appellate decision determined in another case involving allegations of domestic violence.313 As that court wrote: “Due process required the trial court to decide the material issue of father’s alleged death threats and to aford mother the opportunity to ofer relevant and competent evidence on that issue.”314 As another court, in Michigan, put it in the context of yet another domestic violence case: “The prior acts presented by the prosecution at trial also qualify as acts of domestic violence, since defendant ‘caus[ed] physical harm’ to the victim and made death threats toward her ‘that would make a reasonable person feel terrorized, frightened, intimidated, threatened, harassed, or molested.’”315
B. The Definition of Psychological Torture Of critical importance, psychological torture has been defned in criminal cases as an awareness of, but a helplessness
was forced to accompany defendant to the bedroom, submit to his sexual assault, and lie apprehensively on the foor awaiting her uncertain fate as he ransacked her belongings while she sufered oxygen deprivation.”); Neill v. State, 896 P.2d 537, 556−57 (Okla. Crim. App. 1994) (citations omitted) (“Mental anguish includes the victim’s uncertainty as to his ultimate fate. Our fnding of torture is supported by the mental torment of Mr. Zeller prior to the shooting, rather than the events which took place afterwards. In the present case, the evidence clearly supports a fnding of mental anguish beyond that which necessarily accompanies a killing. Accordingly, the evidence was sufcient to support the ‘especially heinous, atrocious or cruel’ aggravating circumstance.”). 311 People v. Arellano, 23 Cal. Rptr. 3d 172, 176 (Cal. Ct. App. 2004). 312 Hekmati v. Islamic Republic of Iran, 278 F. Supp. 3d 145, 160 (D. D.C. 2017) (“[I]n Moradi, this Court held that a detainee in Iranian prison experienced torture when his interrogators subjected him to ‘severe physical and mental pain, including threatening him with death and dismemberment . . . .’” (citing Moradi v. Islamic Republic of Iran, 77 F. Supp. 3d 57, 68−69 (D. D.C. 2015)). 313 Noergaard v. Noergaard, 197 Cal. Rptr. 3d 546, 553 (Cal. Ct. App. 2015). 314 Id. at 554. 315 People v. Phillips, No. 323333, 2016 WL 232324, at *1 (Mich. Ct. App. Jan. 19, 2016). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 73 to prevent, one’s impending death.316 “Psychological torture,” the Court of Criminal Appeals of Alabama has held, “can be inficted where the victim is in intense fear and is aware of, but helpless to prevent, impending death.”317 “Such torture,” that court has ruled, “must have been present for an appreciable lapse of time, sufcient enough to cause prolonged or appreciable sufering.”318 Although courts have not established a particular length of time that is necessary for a premeditated murder to be transformed into a torture-murder, and in reality there is no specifc time requirement for a fnding of torture to be made,319 it is clear that a few hours or even a few minutes can sufce.320 In fact, a murder victim’s awareness of, but
316 Scott v. State, 937 So. 2d 1065, 1083 (Ala. Crim. App. 2005). 317 Shanklin v. State, 187 So. 3d 734, 808 (Ala. Crim. App. 2014) (italics in original) (quoting Ex parte Key, 891 So. 2d 384, 390 (Ala. 2004)); accord Shaw v. State, 207 So. 3d 79, 122 (Ala. Crim. App. 2014); Boyle v. State, 154 So. 3d 171, 234 (Ala. Crim. App. 2013); Albarran v. State, 96 So. 3d 131, 208, 214 (Ala. Crim. App. 2011). The court in Ex parte Key found that, in that case, “the victim sufered psychological torture for an appreciable period.” Ex parte Key, 891 So. 2d at 390. 318 Shanklin v. State, 187 So. 3d 734, 808 (Ala. Crim. App. 2014) (quoting Ex parte Key, 891 So. 2d at 390); accord Shaw v. State, 207 So. 3d 79, 122 (Ala. Crim. App. 2014); Boyle v. State, 154 So. 3d 171, 234 (Ala. Crim. App. 2013); Baker v. State, 87 So. 3d 587, 604 (Ala. Crim. App. 2009); Ex parte Deardorf, 6 So. 3d 1235, 1240 (Ala. 2008). As the Court of Criminal Appeals of Alabama, explaining the operation of the standard in that death penalty jurisdiction, has put it: “‘[T]he factor of psychological torture must have been present for an appreciable lapse of time, sufcient enough to have caused prolonged or appreciable sufering, i.e., the period of sufering must be prolonged enough to separate the crime from ‘ordinary’ murders for which the death penalty is not appropriate.’” Mitchell v. State, 84 So. 3d 968, 986 (Ala. Crim. App. 2010) (quoting Norris v. State, 793 So. 2d 847, 861 (Ala. Crim. App. 1999)). See Doe v. Qi, 349 F. Supp. 2d 1258, 1317 (N.D. Cal. 2004) (“In order to establish mental (in contrast to physical torture), the TVPA [Torture Victims Protection Act] requires a showing of ‘prolonged’ mental harm that is caused by the threat that either the victim or another will be imminently subjected to death or severe physical pain or sufering. The TVPA does not defne the length of time required for a fnding of ‘prolonged’ mental harm.”) (citing 28 U.S.C. § 1350 note § 3(b)(2)). 319 E.g., State v. Gailey, No. 08-0628, 2009 WL 778772, at *3 (Iowa Ct. App. Mar. 26, 2009) (“There is no requirement that torture be inficted for any minimum period of time. . . . We conclude there is substantial evidence to support the jury’s fnding that Gailey intentionally subjected his wife and daughter to mental torture to support a conviction for frst-degree kidnapping.”). 320 E.g., State v. Walters, 588 S.E.2d 344, 363 (N.C. 2003) (“The victims were subjected to at least an hour and a half of psychological torture by being trapped in the trunk of a car while pleading for their lives. The victims 74 Bessler helplessness to prevent, impending death for an appreciable period of time, is a defning feature of “especially heinous, atrocious, or cruel” homicides.321 That aggravating circumstance—and a fnding of torture—has been made, for example, where a perpetrator discussed whether or not to kill a victim in the presence of that victim or where
were also abducted at gunpoint and robbed of jewelry. Furthermore, Susan Moore was forced to witness Tracy Lambert being shot in the head. We thus conclude that the evidence more than warranted the trial court’s submission of the (e)(9) aggravating circumstance to the jury for both murders.”); State v. Carter, 114 S.W.3d 895, 904 (Tenn. 2003) (fnding that photographs, including one of “Mrs. Jackson’s partially nude body” and one of “Mr. Jackson’s body in the closet,” aided “in establishing that the victims sufered torture in the form of severe mental anguish” because “[t]he jury could infer from these photographs that both victims anticipated physical harm,” with the court further emphasizing that “[m]ental torture” occurs “when a victim hears or anticipates the harm or killing of a spouse and is helpless to assist”); State v. Nesbit, 978 S.W.2d 872, 886−87 (Tenn. 1998) (“the jurors were capable of evaluating the proof and determining whether the victim sufered severe mental pain when, over the course of a six hour time period, her body was burned and beaten in her own home, with four of her young children present”; “[t]he sufciency of the evidence to support a jury’s fnding of torture does not depend upon whether an expert witness utters the magical words ‘severe physical or mental pain’” but “whether, after reviewing the evidence in the light most favorable to the State, any rational trier of fact could have found the existence of the aggravating circumstance beyond a reasonable doubt”; “we conclude that the proof is sufcient to support a jury fnding that both severe physical and mental pain was inficted upon the victim while she remained alive and conscious”). 321 E.g., Floyd v. State, No. CR-13-0623, 2017 WL 2889566, at *70 (Ala. Crim. App. July 7, 2017) (containing jury instruction to that efect); see also State v. McNeill, 624 S.E.2d 329, 339 (N.C. 2006) (noting that killings that involve the infiction of psychological torture leave the victim “in her last moments aware of, but helpless to prevent, impending death”); State v. Alston, 461 S.E.2d 687, 718−19 (N.C. 1995) (fnding a murder was “especially heinous, atrocious, or cruel” because of “evidence of psychological terror” that included defendant’s prior threats “to ‘smash in’ the victim’s face and kill the victim”; “[i]t is reasonable to infer that the victim sufered psychological torture and anxiety as her fears were realized and the defendant carried out his threats,” with the court citing prior cases where psychological terror was found before determining: “In the last minutes of the victim’s life, as her face was forced into the pillow and she struggled to breathe, she undoubtedly was left aware of, but unable to prevent, her impending death.”); accord State v. Bell, 603 S.E.2d 93, 121 (N.C. 2004); State v. Tirado, 599 S.E.2d 515, 544 (N.C. 2004); State v. Barden, 572 S.E.2d 108, 142 (N.C. 2002); State v. Mann, 560 S.E.2d 776, 788 (N.C. 2002); State v. Anthony, 555 S.E.2d 557, 596−97 (N.C. 2001); State v. Spruill, 360 S.E.2d 667, 670, 674 (N.C. 1987); State v. Gladden, 340 S.E.2d 673, 694 (N.C. 1986); State v. Hamlet, 321 S.E.2d 837, 846 (N.C. 1984). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 75 the victim pleaded for his or her life.322 As the Court of Criminal Appeals of Alabama has written of that aggravating circumstance: “In determining the application of this aggravating circumstance ‘we must consider whether the violence involved in achieving the killing went beyond what was necessary to cause death, whether the victims experienced appreciable sufering after a swift assault, and whether there was psychological torture.’”323 In determining if an ofense is especially heinous, atrocious, or cruel, Alabama courts examine these three factors: “(1) the infiction on the victim of physical violence beyond that necessary or sufcient to cause death; (2) appreciable sufering by the victim after the assault that ultimately resulted in death; and (3) the infiction of psychological torture on the victim.”324 As regards the last factor, the Alabama courts have stated: “Thus, mental sufering may be found where a victim witnesses the murder of another (particularly a family member) and then realizes that soon he or she will also be killed, as well as where the victim is expressly taunted with the prospect of his or her own death.”325 The consideration of the existing defnition of psychological torture in death penalty states such as Alabama has important—and unmistakable—collateral consequences for capital punishment. The Alabama case of Ex parte Deardorf326 is noteworthy. In that case, the Supreme Court of Alabama considered the case of Donald Deardorf, a man convicted of capital murder. In determining that the murder was especially heinous, atrocious, or
322 State v. Hodges, 944 S.W.2d 346, 357−58 (Tenn. 1997). 323 Smith v. State, 122 So. 3d 224, 241 (Ala. Crim. App. 2011) (quoting Brownfeld v. State, 44 So. 3d 1, 41 (Ala. Crim. App. 2007)). 324 Saunders v. State, 10 So. 3d 53, 108 (Ala. Crim. App. 2007) (citing Brooks v. State, 973 So. 2d 380, 417−18 (Ala. Crim. App. 2007)). 325 Id. at 108−09; accord Brooks v. State, 973 So. 2d 380, 418−19 (Ala. Crim. App. 2007); Norris v. State, 793 So. 2d 847, 859−60 (Ala. Crim. App. 1999). Psychological torture has been found in multiple Alabama cases. E.g., Brown v. State, 982 So. 2d 565, 607 (Ala. Crim. App. 2006) (“The evidence establishes that the victim sufered for an appreciable amount of time following the assault and clearly endured extensive psychological torture.”). But it has not been found where the victims were shot in rapid succession. Norris v. State, 793 So. 2d 847, 862 (Ala. Crim. App. 1999) (“[B]ecause the three victims were shot in rapid, uninterrupted succession, any momentary fear or anxiety of impending death did not last sufciently long as to constitute the unnecessary torture required to elevate the ofense to an especially heinous, atrocious, or cruel ofense . . . .”). 326 Ex parte Deardorf, 6 So. 3d 1235 (Ala. 2008). 76 Bessler cruel when compared to other capital ofenses, Alabama’s highest court set forth a detailed description of the murder—one involving binding the victim’s hands with duct tape, keeping the victim in a closet, driving him to a remote spot while his hands and mouth were taped, and then shooting him in the head four times while his head was covered with a pillowcase.327 Deardorf was sentenced to death for the execution-style murder,328 with the Court of Criminal Appeals fnding sufcient evidence to support the determination that the murder was especially heinous, atrocious, or cruel.329 As the court pointed out, the victim feared for his life, “[t]he terror he experienced must have escalated tremendously when his mouth was taped and his hands were bound,” and “he had to know that his death was imminent.”330 In afrming Deardorf’s death sentence, the Supreme Court of Alabama specifcally highlighted that the victim was “threatened with death” and “held in captivity and confned in a closet” while hooded and with his hands taped.331 Those circumstances, the court observed, constituted “psychological torture so as to meet the standard for a murder that is ‘especially heinous, atrocious, or cruel.’”332 Other courts in American death penalty states have also found the presence of psychological torture where the victim had an awareness of impending death but an inability to prevent it. For example, in State v. Sloan,333 the Supreme Court of Missouri ruled:
327 Id. at 1237−40. 328 That various “execution-style” murders have been described as torturous in nature is itself telling about the torturous nature of actual executions. E.g., Michael J. Boyle, Violence After War: Explaining Instability in Post-Conflict States 296 (2014) (quoting U.N. Assistance Mission for Iraq (UNAMI), Human Rights Report (2006)) (“‘Dozens of bodies bearing signs of torture and showing execution style killings have continued to appear daily in and around Baghdad, as well as other parts of the country.’”); Clint Richmond, Fetch the Devil: The Sierra Diablo Murders and Nazi Espionage in America 60 (2014) (“The mother and daughter had been methodically tortured over a period of time and then carefully and deliberately put to death—execution style. The prolonged torture of the victims and execution-style killings were the most heinous crimes either of the veteran criminologists had seen in their long careers.”). Both execution-style killings and state-sanctioned killings involve the infiction of severe pain or sufering. 329 Ex parte Deardorf, 6 So. 3d at 1238. 330 Id. (quoting Deardorf v. State, 6 So. 3d 1205 (Ala. Crim. App. 2004)). 331 Id. at 1240. 332 Id. 333 State v. Sloan, 756 S.W.2d 503 (Mo. 1988) (en banc). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 77
Here, the evidence shows that Jason was the last member of the Sloan family to be shot. The jury could have reasonably believed that Jason had heard the previous gunshots and was therefore hiding under a blanket, his arms covering his head, in a hopeless efort to conceal himself from appellant’s aim. This is sufcient evidence of psychological torture, as it indicates that Jason had the opportunity to anticipate and refect upon his impending death while his parents and brother were shot.334
In another case, State v. Oliver,335 the Supreme Court of North Carolina similarly found especially heinous, atrocious, or cruel murders included those “calculated to leave the victim in his last moments as a sentient being, aware but helpless to prevent impending death, focusing on the deliberate, intentional and senseless aspect of a conscienceless and pitiless murder inficting psychological torture.”336 In that case, the court found that the victim had pleaded “please don’t shoot me” before death, concluding that “the evidence was sufcient to support the submission to the jury of the factor that the murder was especially heinous, atrocious, or cruel.”337 Of course, death row inmates in their fnal days and hours, if not so depressed that they simply abandon their appeals altogether, are also forced to beg for their lives, if only through their lawyers. In the context of criminal responsibility, fndings of psychological torture have frequently been made where a murder victim begged for his or her own life.338 The fact that there is a
334 Id. at 511. 335 State v. Oliver, 307 S.E.2d 304 (N.C. 1983). 336 Id. at 318. 337 Id. at 319. 338 Id. at 318−19 (defendant’s boasting to fellow inmates that he had enjoyed killing victim, who had begged for his life, was evidence of “conscienceless and pitiless murder inficting psychological torture”); see also State v. Rhines, 548 N.W.2d 415, 452 (S.D. 1996) (“The evidence also shows that Rhines possessed the necessary intent for a fnding of torture. When Schaefer pleaded with Rhines for his life, Rhines did not tell ofcers of his desire to quickly end his victim’s life. Instead, Rhines described his own sarcastic and scornful attitude toward Schaefer’s sufering. Rhines also stated that when he believed Schaefer had survived the third stab wound, he tied his victim’s hands and left him to die. This evidence supports a fnding that Rhines intended to cause unnecessary pain to his victim.”). 78 Bessler short time lapse between a victim’s abduction or incapacitation and the victim’s death—as one Tennessee court has put it—“does not alone support a fnding that the victim was mentally tortured.”339 As that court stressed: “[P]roof that the victim begged for his life in the last few seconds of his life is, by itself, insufcient to support a fnding of mental torture that would distinguish this murder from any other murder.”340 “The fact that the victim begged for his life or that there were multiple gunshots,” the Supreme Court of Florida similarly emphasized, “is an inadequate basis to fnd this aggravating factor absent evidence that [the perpetrator] intended to cause the victim unnecessary and prolonged sufering.”341 But where the victim begged for life and was made to sufer for more than a feeting amount of time (i.e. an appreciable amount of time), a fnding of psychological torture has been made.342 Defendants in capital cases and those sentenced to death plainly sufer for an appreciable amount of time, with the prospect of an untimely death via a state-sanctioned killing hanging over their heads like the Sword of Damocles.343 Extreme mental anguish, it has been held, occurs where a person realizes that he or she is about to be killed but is unable to do anything to stop it.344 Indeed, torture techniques are specifcally
339 State v. Beckman, No. 02C01-9406-CR-00107, 1995 WL 568471, at *17 (Tenn. Crim. App. Sept. 27, 1995). 340 Id. 341 Bonifay v. State, 626 So. 2d 1310, 1313 (Fla. 1993); see also id. (“The record fails to demonstrate any intent by Bonifay to infict a high degree of pain or to otherwise torture the victim.”). 342 E.g., Fowler v. State, 779 P.2d 580, 588 (Okla. Crim. App. 1989) (“Mr. Barrier attempted to fght of the attack and begged for his life before he died. Such evidence clearly demonstrated torture and serious physical abuse, thereby supporting the jury’s fnding that the death of John Barrier was heinous, atrocious or cruel.”). Whether any particular murder qualifes as a torture-murder can be a factual issue for a jury to determine. Talamantez v. Superior Court, 122 Cal. App. 3d 629, 638 (Cal. Ct. App. 1981). 343 Valeri R. Helterbran, Why Flamingos Are Pink: . . . and 250 Other Things You Should Know 102 (2007) (italics in original) (“The phrase sword of Damocles is defned as a threat, peril, or imminent danger.”). 344 Neill v. State, 896 P.2d 537, 556 (Okla. Crim. App. 1994) (“There is ample evidence of the extreme mental anguish sufered by these three (3) women prior to their deaths. This evidence illustrates the realization by these women that they were going to be harmed and even killed by Appellant. Two (2) of the women sufered the additional mental anguish of hearing their co-workers being savagely murdered and realizing they could be next. The cause of this extreme mental torture was Appellant’s intentional VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 79 designed to strip the object of the torture from any control or agency and to create a “state of total helplessness.”345 It is for that reason that threats of various kinds, subjecting their targets to an uncertain fate, have long been considered to be torturous in nature.346 In that regard, Almerindo Ojeda, the Director at University of California, Davis’s Center for the Study of Human Rights in the Americas, has specifcally classifed the following as acts of torture: threats “to self or to others”; “threats of death, physical torture, or rendition”; “mock executions”; and “forced witnessing of torture (visually or aurally).”347 “Mock” executions, of course, are simply credible threats of death, and thus considered classic examples of psychological torture because of their inherent characteristics.348 Ironically, although a simulated or fake execution currently qualifes as an act of torture, state-sanctioned executions, which result in actual deaths, have yet to be categorized as acts of torture by modern jurists.349 If a mock execution or a mock amputation qualifes as an
actions.”). 345 Mohammed v. Obama, 704 F. Supp. 2d 1, 27 (D.D.C. 2009) (quoting Metin Başoğlu et al., Torture vs Other Cruel, Inhuman, and Degrading Treatment: Is the Distinction Real or Apparent?, 64 Archives Gen. Psychiatry 277, 283 (2007)) (“Torture and ‘enhanced interrogation techniques’ employed by the Government during the War on Terror have been shown to be ‘geared toward creating anxiety or fear in the detainee while at the same time removing any form of control from the person to create a state of total helplessness.’”). 346 Andrea Montavon-McKillip, CAT Among Pigeons: The Convention Against Torture, A Precarious Intersection Between International Human Rights Law and U.S. Immigration Law, 44 Ariz. L. Rev. 247, 253−54 (2002) (“Mental torture can be inficted by direct or implied threats that cause fear, including death threats or threats of serious injury against an individual or her family, or by forcing an individual to watch the abuse or murder of loved ones.”). 347 David Luban & Henry Shue, Mental Torture: A Critique of Erasures in U.S. Law, 100 Geo. L.J. 823, 836−37 (2012). 348 Luban, supra note 1, at 166; see also Pérez-Sales, Psychological Torture, supra note 305, at 308, 333 (noting that “[t]hreats of death” and “mock executions,” along with “[p]sychological techniques to break down the individual,” are classifed as torture under the Istanbul Protocol (1985), and listing mock executions as a form of psychological torture). 349 The debate about how to classify executions—and whether they are legitimate or illegitimate exercises of state power—has led to heated debate over the years. Compare Hans Göran Franck, The Barbaric Punishment: Abolishing the Death Penalty 35 (William Schabas ed., 2003) (“The conditions surrounding the execution itself and the period between the sentence and the carrying out of the sentence, which is frequently quite long, make it possible to compare the death penalty to torture.”), with Ernest van den Haag, Introduction: Death but Not Torture, in The Death Penalty: A Debate 13 (1983) (containing Ernest van den 80 Bessler act of torture (as it should),350 then a real execution—logically and rationally—must also qualify.
C. The Torturous Nature of Non-Lethal Acts Many acts short of death can qualify as torture under existing law.351 “Rape can constitute torture,” the Third Circuit explicitly ruled in Zubeda v. Ashcroft,352 for example. As the Third Circuit stated: “Rape is a form of aggression constituting an egregious violation of humanity. The scarring efects of rape compare with ‘psychological sequelae of . . . survivors of abuse constituting torture under international law . . . .’”353 Indeed, “rape” and “threats to rape” have been listed among common “torture techniques.”354 If acts short of death, including threats of non-homicidal rape or bodily harm, can qualify as torture, then (once again) it is only logical that credible threats of death—threats designed to put individuals in fear for their lives—should also qualify under that legal rubric.355 In short, just
Haag’s views on the death penalty in a “Pro”/“Con” debate between Ernest van den Haag and John P. Conrad). 350 Noam Lubell, Extraterritorial Use of Force Against Non- State Actors 180 (2010) (“In addition to the ‘classic’ examples of torture such as electric shocks, examples of acts which have been determined as torture or other prohibited ill-treatment, include methods such as severe beatings; mock executions and mock amputations; sensory manipulation and deprivation, and forced positions causing severe pain; rape and other sexual violence.”). 351 Such non-lethal acts include rape, forced impregnation, branding, beating, electric shocks administered to the genitals, pulling out fngernails, burning with hot irons, suspension from ceiling fans, and threats to infict bodily harm. E.g., Al-Saher v. INS, 268 F.3d 1143, 1147 (9th Cir. 2001); see also Kadic v. Karadzic, 70 F.3d 232, 242 (2d Cir. 1995) (referring to allegations of “murder, rape, forced impregnation, and other forms of torture”); In re Extradition of Suarez-Mason, 694 F. Supp. 676, 682 (N.D. Cal. 1988) (“shock sessions were interspersed with rapes and other forms of torture”). 352 Zubeda v. Ashcroft, 333 F.3d 463, 472 (3d Cir. 2003). 353 Id. (citations omitted); see also id. (“courts have equated rape with conduct recognized under the law of nations as torture”). 354 Al-Saher, 268 F.3d at 1147; see also Anne-Marie L.M. de Brouwer, Supranational Criminal Prosecution of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR 211 (2005) (“[T]he case law of the ICTY has recognised that rape and other forms of sexual violence can rise to the level of torture . . . . [O]ther forms of sexual violence qualifying as torture are threats to sexually mutilate a person, threats to rape someone . . . .”). 355 Whether someone intends his words “to be taken as a threat,” and whether those words are “sufciently unequivocal, unconditional, immediate and specifc” to convey to the target of them “an immediacy of purpose and VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 81 as prison ofcials are not allowed to threaten inmates with death or bodily harm during their confnement in prison, state actors should not be allowed to threaten inmates with death in connection with interrogations or during plea bargaining or as part of the criminal justice system more broadly. A death threat is a death threat,356 and the fact that an inmate has done something heinous in the past does not justify a government ofcial in making a torturous threat of death that is backed by the enormous power of the state.357 That mock executions, non-judicial threats of death, and threats of severe pain or sufering are already classifed as acts of torture makes clear that real executions should also be so classifed. Tellingly, the U.S. Department of State has previously recognized mock executions to be a form of torture,358 as have federal courts in the United States.359 The United States Code itself defnes “torture”
immediate prospect of execution of the threat,” is to be based on “all the surrounding circumstances and not just on the words alone.” People v. Mosley, 65 Cal. Rptr. 3d 856, 864 (Cal. Ct. App. 2007); cf. Nifadev v. Holder, 577 F. App’x 481, 487 (6th Cir. 2014) (“Nifadev was subjected to credible threats to his life and subjected to a period of sufocation at the hands of the police when handcufed and helpless in a police vehicle on account of a protected ground. This treatment bears a striking resemblance to torture . . . .”). 356 As Shakespeare put it in a much diferent context: “A rose by any other name would smell as sweet.” Or, as Gertrude Stein once emphasized, playing of of Shakespeare’s line: “A rose is a rose is a rose is a rose.” Sunil Sethi, The Big Bookshelf: Sunil Sethi in Conversation with 30 Famous Writers 83 (2011). 357 And this is to say nothing of the horror that must be experienced by innocent people who are mistakenly sentenced to death. Miscarriages of justice are relatively common, especially in death penalty cases. Innocence and the Death Penalty, Death Penalty Information Center, https:// deathpenaltyinfo.org/innocence-and-death-penalty (last visited Sept. 24, 2018); see also The National Registry of Exonerations, https:// www.law.umich.edu/special/exoneration/Pages/about.aspx (last visited Sept. 24, 2018). The stories of just some of the exonerees are highlighted in a series of short documentary flms produced in 2013 and available online. See One for Ten, http://oneforten.com (last visited Sept. 24, 2018). 358 U.S. Dep’t of State, Country Reports on Human Rights Practices for 1993, S. Prt. 103-7 (Joint Comm. Print 1994) (recognizing mock executions as a form of torture in Chad, Columbia, Liberia, Moldova and Sudan). 359 Orantes-Hernandez v. Meese, 685 F. Supp. 1488, 1492 (C.D. Cal. 1988) (“The form of the persecution includes the following: arbitrary arrest, short term detention, torture including use of electric shock, capucha, beatings, rape, ‘disappearance’, extra-judicial executions, abductions, threats against family members, intimidation, forced ingestion of food, 82 Bessler to mean “an act committed by a person acting under the color of law specifcally intended to infict severe physical or mental pain or sufering (other than pain or sufering incidental to lawful sanctions) upon another person within his custody or physical control.”360 Not only are “mock” executions already treated as acts of torture,361 they are, under existing law put in place by U.S. Congress and the executive branch, banned by the U.S. Code362 and the U.S. Army
false imprisonment, mock-executions, sleep deprivation, mass killings, and forced relocations.”); Acree v. Republic of Iraq, 271 F. Supp. 2d 179, 185 (D. D.C. 2003) (“[T]he pilot POWs were tortured more severely than other POWs. The torture inficted included severe beatings, mock executions, threatened castration, and threatened dismemberment.”), vacated on other grounds, Acree v. Republic of Iraq, 370 F.3d 41 (2004); Acree, 271 F. Supp. 2d at 210, 218 (describing “mock executions” and “several death threats” by the Saddam Hussein’s Iraqi Intelligence Service that caused “great distress” and “psychological torture,” and referring to Iraq’s “all-encompassing environment of physical and mental torture through extreme physical brutality and physical injury, mock executions, threats of death, intense fear”). 360 18 U.S.C. § 2340(1) (2004). The phrase “severe mental pain or sufering” in that federal statute is defned as follows: “[T]he prolonged mental harm caused by or resulting from—(A) the intentional infiction or threatened infiction of severe physical pain or sufering; (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (C) the threat of imminent death; or (D) the threat that another person will imminently be subjected to death, severe physical pain or sufering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality . . . .” Id. § 2340(2) (A)−(D) (italics added). 361 Tshitenge Muteba v. Zaire, Communication 124/1982, Human Rights Committee [U.N. Doc. Supp. No. 40 (A/39/40)] at 182, ¶ 10.2 (Mar. 25, 1983), http://hrlibrary.umn.edu/undocs/session39/124-1982.htm (“During the frst nine days of detention he was interrogated and subjected to various forms of torture including beatings, electric shocks and mock executions.”). The Human Rights Committee lists “beatings, electric shocks, mock executions, deprivation of food and water and thumb presses” under the torture rubric. Sarah Joseph et al., Seeking Remedies for Torture Victims: A Handbook on the Individual Complaints Procedures of the UN Treaty Bodies 159 (2006). In 1999, the Clinton Administration—in a report to the U.N. Committee Against Torture—itself described “[t]he intentional infiction of ‘mental’ pain and sufering” to include “various psychological forms of torture and ill- treatment,” including “mock executions.” Bessler, The Death Penalty as Torture, supra note 26, at 324 n.18. 362 18 U.S.C. § 2340(2)(C) (2004); see also David R. Dow et al., The Extraordinary Execution of Billy Vickers, the Banality of Death, and the Demise of Post-Conviction Review, 13 Wm. & Mary Bill Rts. J. 521, 550 n.150 (2004) (“Mock executions and other threats of imminent death are widely recognized to be VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 83
Field Manual.363 “Sham executions,” a book on trauma notes of simulated executions, are “a widely practiced form of torture.”364 If threats of death or threats to infict severe pain or sufering
a form of unconscionable torture. Legislation passed by the United States Congress on April 30, 1994, implementing the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, identifes ‘the threat of imminent death’ as a form of torture. This provision was designed to bring ‘mock executions’ within the ambit of the legislation.”) (citing 18 U.S.C. § 2340(2)(C) (2004); David P. Stewart, The Torture Convention and the Reception of International Criminal Law Within the United States, 15 Nova L. Rev. 449, 455−56 (1991)). 363 Dep’t of the Army, Field Manual 34−52: Intelligence Interrogation 1-8 (Washington, D.C., Sept. 28, 1992) (listing “Mock executions” as an example of “mental torture,” and listing the following as “[e]xamples of coercion”: “Threatening or implying physical or mental torture to the subject, his family, or others to whom he owes loyalty”); see also David P. Gushee, In the Fray: Contesting Christian Public Ethics, 1994−2013, 121 (2014) (noting that the U.S. Army Field Manual prohibits military personnel from beating prisoners, waterboarding them, sexually humiliating them, threatening them with dogs, depriving them of food and water, performing mock executions, shocking them with electricity, burning them, or causing other types of pain); David E. Graham, The Treatment and Interrogation of Prisoners of War and Detainees, 37 Geo. J. Int’l L. 61, 89−90 (2005) (noting that Army Field Manual 34-52 prohibits “[p]hysical or mental torture and coercion” and lists “Mock executions” as an example of mental torture); Matthew Lippman, Law and Society 495 (2015) (“In 2005, Congress amended the Detainee Treatment Act to prohibit the use of cruel, inhuman, or degrading treatment by government personnel and to prohibit military interrogators from employing interrogation techniques not authorized under the Army Field Manual. The manual, for example, prohibits the use of dogs, hooding, forced nakedness, hypothermia, mock executions, electric shocks, and waterboarding.”). 364 Metin Başoğlu & Ebru Şalcioğlu, A Mental Healthcare Model for Mass Trauma Survivors: Control-Focused Behavioral Treatment of Earthquake, War, and Torture Trauma 41 (2011). As that source observes: “Sometimes the detainee is subjected to a prolonged threat of execution.” For instance, detainees are told that “they are going to be shot the next morning.” As that source continues of how such torturous acts unfold: “The next day they are taken from their cell, blindfolded and taken to another room where someone holds an unloaded gun at their head and pulls the trigger. The same procedure may be repeated for days or weeks on end.” Id. Studies of torture have revealed that “[p]otentially life-threatening (e.g. deprivation of basic needs), fear-inducing treatments (e.g. threats of harm to self and close ones, sham executions, asphyxiation), and humiliating treatments were the major determinants of perceived severity of the torture experience.” Id. at 52; see also id. at 61 (noting “various stressor events that are said not to involve intense physical pain” (e.g., “sham executions”) “can be as distressing as physical torture”). 84 Bessler already are classed as acts of torture,365 then plainly such credible threats, when coupled with a clear intention that those threats be actualized, must also be classifed as torture.366 It has sometimes
365 E.g., James P. Terry, Torture and the Interrogation of Detainees, 32 Campbell L. Rev. 595, 612−13 (2010) (“The cases brought under the TVPA [Torture Victims Protection Act] reference seven distinct forms of severe abuse that would constitute torture: (1) severe beatings using weapons such as truncheons and clubs; (2) threats of imminent death, to include mock executions; (3) threats of removing body parts and[/]or extremities; (4) burning, especially burning with cigarettes; (5) electric shocks to genital areas, or threats to do so; (6) rape or sexual assault, to include injury to sexual organs, or threats of the same; and (7) forcing the detainee to watch the extreme physical or mental torture of others. The severity of these examples of treatment found in civil proceedings suggests that similar severity would have to be found to warrant conviction under the criminal provisions in 18 U.S.C. §§ 2340-2340A.”). 366 Torture has been described as a specifc intent crime. Michael Otterman, American Torture: From the Cold War to Abu Ghraib and Beyond 109 (2007); Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 2971 (2016). But in the case of capital punishment, even if a particular judge has no specifc intent to infict severe pain or sufering, the result—in every case—is that severe pain and sufering is inficted. Moreover, capital punishment is a torturous punishment that society imposes collectively. The Death Penalty Today 115 (Robert M. Bohm ed., 2008) (“Vengeance is a human emotion experienced by individual people. Retribution is a collective response to wrongdoing from society rather than individual family members.”). Research shows that some like to see bad people sufer. Malcolm Ritter, Men Enjoy Seeing Bad People Sufer, USA Today (Jan. 18, 2006). To date, courts have yet to fnd executions, even botched executions, to be torturous acts. E.g., Estate of Lockett v. Fallin, 841 F.3d 1098, 1113 (10th Cir. 2016) (italics in original) (citation omitted) (“The Supreme Court has determined that, in the execution context, ‘torture’ and ‘cruel and unusual punishment’ require that executing ofcials mean to choose an execution method that will cause extra pain beyond that necessary to carry out the death sentence.”). The legal prohibitions against torture and cruelty, however, are designed to insulate ourselves from our baser instincts. As Justice Thurgood Marshall once wrote: “The Eighth Amendment is our insulation from our baser selves.” Charles L. Zelden, Thurgood Marshall: Race, Rights, and the Struggle for a More Perfect Union 149 (2013). This helps explain why the prohibition against torture is—and should be—absolute. The Routledge Handbook of Global Ethics 123 (Darrel Moellendorf & Heather Widdows eds., 2015) (“The function of the absolute moral prohibition against torture as an archetype of the fact that there are some activities in which civilized people do not engage is too important to allow a breach of the prohibition even if the degree of the wrongfulness of torturing VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 85 been suggested, including in the infamous Torture Memo prepared during the Bush Administration after 9/11, that a threat must be “imminent” in order for the threat to constitute torture.367 But when a capital charge is brought or a death sentence is imposed, the consequences of that capital charge or death sentence are clearly known by government ofcials at the very moment that it is brought or imposed. An execution might not occur for years, or even decades, down the road.368 But it is readily apparent to all concerned that the threat of death for the ofender will be real, immediate, and dire. As the execution date approaches, the seriousness of the threat of death (already highly credible) will only be magnifed.369 And all of this is
the person in question were not reason enough in itself.”); Richard Matthews, The Absolute Violation: Why Torture Must Be Prohibited 220 (2008) (“[T]he absolute prohibition against torture, including the nonderogability clause of the United Nations Convention against Torture, is morally sound. Hence torture must be absolutely forbidden, no matter what.”). 367 Memorandum from Jay S. Bybee, Assistant Att’y Gen., to Alberto R. Gonzales, Counsel to the President 12 (Aug. 1, 2002) (on fle with the U.S. Dep’t of Justice) (emphasis in original) (“The third predicate act listed in Section 2340(2) is threatening a prisoner with ‘imminent death.’ 18 U.S.C. § 2340(2)(C). The plain text makes clear that a threat of death alone is insufcient; the threat must indicate that death is ‘imminent.’ . . . Common law cases and legislation generally defne imminence as requiring that the threat be almost immediately forthcoming. 1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 5.7, at 655 (1986). By contrast, threats referring vaguely to things that might happen in the future do not satisfy this immediacy requirement. See United States v. Fiore, 178 F.3d 917, 923 (7th Cir. 1999). Such a threat fails to satisfy this requirement not because it is too remote in time but because there is a lack of certainly that it will occur. Indeed, timing is an indicator of certainty that the harm will befall the defendant. Thus, a vague threat that someday the prisoner might be killed would not sufce. Instead, subjecting a prisoner to mock executions or playing Russian roulette with him would have sufcient immediacy to constitute a threat of imminent death. Additionally, as discussed earlier, we believe that the existence of a threat must be assessed from the perspective of a reasonable person in the same circumstances.”). 368 The average time that an American death row inmate spends on death row between sentencing and execution is now more than ffteen years. Michael Johnson, Fifteen Years and Death: Double Jeopardy, Multiple Punishments, and Extended Stays on Death Row, 23 B.U. Pub. Int. L.J. 85, 86,103−12 (2014). Death row inmates in other countries, including Pakistan and Japan, also spend many years on death row before execution. Roger Hood & Carolyn Hoyle, The Death Penalty: A Worldwide Perspective ch. 5 (5th ed. 2015). 369 Cf. Volloldo v. Ruz, No. 1:14-MC-25 (LEK/CFH), 2017 WL 4838780 at *6 (N.D.N.Y. Oct. 14, 2017) (“Were Plaintifs to provide evidence that 86 Bessler known well in advance by every actor in the criminal justice system, from prosecutors and defense lawyers to trial and appellate judges. It is also known by everyone involved that the inmate will sufer tremendous psychological torment while that inmate is under a constant threat of death, whether or not the threat is carried out. A mock execution may not actually infict any observable physical harm, though someone who goes through a sham execution obviously experiences extreme psychological terror during and after the ordeal.370 Just as the victim of a mock execution is tortured (and is considered a torture victim) despite the lack of any observable physical indicators that torture has occurred, a person capitally charged and sentenced to death sufers severe psychological torment371 even if an execution is physically painless
Defendants made ‘imminent death threats,’ they may be able to establish torture under the TVPA [Torture Victim Protection Act of 1991].”). In the non-state actor context, the line between a murder and a torture-murder often boils down to how long the victim was aware that his or her death would occur. Compare Mitchell v. State, 84 So. 3d 968, 987 (Ala. Crim. App. 2010) (“The record establishes that at least one victim sufered psychological torture. . . . ‘These murders were not accomplished in a rapid-fre manner; there was sufcient time between the . . . murders for the next victim to be placed in signifcant fear for his or her life . . . .’ Therefore, the circuit court did not abuse its discretion in fnding that at least one of the victims sufered psychological torture.”) (quoting Taylor v. State, 808 So. 2d 1148, 1169 (Ala. Crim. App. 2000)), with Norris v. State, 793 So. 2d 847, 861 (Ala. Crim. App. 1999) (holding that the murder of three individuals was not psychologically torturous because the three victims were shot in rapid succession; the “frst three shots were sudden, without any warning or precipitating event”; “[t]here was nothing preceding the frst murder that would have evoked in the victims intense apprehension, fear, or anticipation of their deaths”). In the death penalty context, a death row inmate is fully aware of his or her impending death—and is helpless to prevent that death— for substantially longer than a typical victim of torture-murder. The heinous actions of torture-murderers are inexcusable, but those actions do not justify the use of torture against already-incarcerated inmates. Acts of torture should be prohibited in all circumstances. 370 John Conroy, Unspeakable Acts, Ordinary People: The Dynamics of Torture 180 (2001) (“Dr. Rasmussen’s survey of two hundred victims (examined three days to twelve years after their torture) found that the incidence of mental symptoms at the time of examination was signifcantly higher among those who had been subjected to a mock execution. Rasmussen’s Danish Medical Bulletin article noted that 83 percent of those who experienced mock executions exhibited mental symptoms, about 20 percent more than those who had not been subjected to that particular torture.”). 371 E.g., Amanda K. Eklund, The Death Penalty in Montana: A Violation of the VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 87 or averted altogether through an appeal or executive clemency.372 Just as prison ofcials are not allowed to use correctional practices or techniques that exacerbate serious mental illnesses or that infict psychological torture,373 government actors should not be allowed to use punishment practices that do just that.374 In allowing death
Constitutional Right to Individual Dignity, 65 Mont. L. Rev. 135, 142−43 (2004) (noting that “[t]here are numerous accounts of mental anguish sufered by death row inmates” and discussing the case of one inmate, Henry Arsenault, who was on death row for two years, “during which time he became obsessed with his impending death”; Arsenault’s “psychosis manifested itself in uncontrollable sweating, frequent inability to sleep or eat, unbearable nightmares, uncontrollable urination, and constant fdgeting”; when Arsenault’s execution was called of after the administration of last rites and less than half an hour before the execution was scheduled to take place, Arsenault “was so distraught that he was unable to walk, and guards had to carry him back to his cell”; a judge later described Arsenault’s condition of “raw terror and unabating stress” as “torture”). 372 During a mock execution and in lead up to an actual execution, the object of the mock execution or the actual execution also experiences physical symptoms such as an increased heart rate or urinating on oneself. E.g., Jeffrey D. Simon, The Terrorist Trap: America’s Experience with Terrorism 144 (2d ed. 2001) (describing a mock execution); Conroy, supra note 370, at 35−36 (same). Prison ofcials themselves go through their own “mock” executions (of a diferent sort) as they test execution equipment or prepare for executions. Louis J. Palmer, Jr., Encyclopedia of Capital Punishment in the United States 427 (2d ed. 2008) (“testing of the execution equipment” in Florida “is performed a minimum of eight times each year”). 373 Walker v. State, 68 P.3d 872, 884 (Mont. 2003) (“[I]f the particular conditions of confnement cause serious mental illness to be greatly exacerbated or if it deprives inmates of their sanity, then prison ofcials have deprived inmates of the basic necessity for human existence and have crossed into the realm of psychological torture.”). 374 James L. Knoll IV & Gary E. Beven, Supermax Units and Death Row, in Handbook of Correctional Mental Health 435, 467 (Charles L. Scott ed., 2d ed. 2010) (citations omitted) (“[E]xtended stays on death row have been associated with psychiatric decompensation. Prisoners on death row have been found to demonstrate aberrant behavior and paranoia.”); id. (“Treating psychiatrists should also be aware that the suicide rate of male death row inmates was found to be approximately fve times higher than the rate among men in the community.”); Kenneth Williams, Most Deserving of Death? An Analysis of the Supreme Court’s Death Penalty Jurisprudence 103 (2012) (“It is not surprising that the conditions on death row often create or exacerbate inmates’ mental problems. For example, death row inmates in Texas are housed alone in small cells measuring 6½ feet by 10 feet, containing a bed and a toilet, for 23 hours a day. They are allowed to leave their cells for one hour a day 88 Bessler sentences and executions, government actors are engaged in, or acquiescing to, deliberate and intentional conduct that runs afoul of the absolute prohibition against torture.375
D. The “Lawful Sanctions” Issue Death penalty proponents will assert that death sentences and executions are, and traditionally have been, classifed as “lawful sanctions” that constitute an exception to the defnition of torture. But death sentences and executions are no longer lawful or in use in many places throughout the world,376 and given the absolute, non-
of recreation, which is also done alone.”). See also 1 Encyclopedia of Gender and Society 187 (Jodi O’Brien ed., 2009) (“Because 75 percent of all women who are on death row are mothers, the failure to be able to connect with their children further fosters their isolation. The isolation that women experience on death row is a risk factor for developing a mental illness or further exacerbating an existing mental condition.”). 375 Compare Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014) (citations omitted) (“Public ofcials acquiesce in torture if, ‘prior to the activity constituting torture,’ the ofcials: (1) have awareness of the activity (or consciously close their eyes to the fact [that] it is going on); and (2) breach their legal responsibility to intervene to prevent the activity because they are unable or unwilling to oppose it.”), and Sanchez-Ponce v. Whitaker, No. 17-579, 2018 WL 6266311, at *2 (2d Cir. Nov. 30, 2018) (“A government’s inability to prevent torture—even when some state actors take ‘preventative eforts’—may be adequate to state a CAT claim.”), with Mouawad v. Gonzales, 485 F.3d 405, 413 (8th Cir. 2007) (citations omitted) (“A government does not acquiesce in the torture of its citizens merely because it ‘is aware of torture but powerless to stop it,’ but it does cross the line into acquiescence when it shows ‘willful blindness toward the torture of citizens by third parties.’”), and Ticas-Guillen v. Whitaker, No. 16-72981, 2018 WL 6266766, at *1 (9th Cir. Nov. 30, 2018) (citations omitted) (“[T]he government ‘does not acquiesce in the torture of its citizens merely because it is aware of torture but powerless to stop it.’”). Acquiescence “requires that the public ofcial, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.” 8 C.F.R. § 1208.18(a) (7) (2018). See also Parada v. Sessions, 902 F.3d 901, 916 (9th Cir. 2018) (“[T]he acquiescence standard is met where the record demonstrates that public ofcials at any level—even if not at the federal level—would acquiesce in torture the petitioner is likely to sufer.”). 376 Bessler, Cruel and Unusual, supra note 190, at 64 (noting that a growing number of countries have outlawed executions either in law or in practice); see also Federico Mayor Zaragoza, The Abolition of the Death Penalty: A Question of Respect for Human Rights, in Death Penalty: A Cruel and Inhuman Punishment 11, 13 (L. Arroyo Zapatero et al. eds., 2013) (discussing the work of the International Commission against the Death Penalty, which seeks the universal abolition of capital punishment). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 89 derogable prohibition against torture,377 it seems self-evident that to genuinely be a “lawful sanction” the sanction itself should not constitute an otherwise torturous act. There is already a jus cogens norm prohibiting torture,378 and a reservation to a human rights treaty such as the Convention Against Torture cannot violate the “object and purpose” of that treaty.379 The clear object and purpose of the Convention Against Torture is, manifestly, to combat, prevent, and outlaw acts of cruelty and torture.380 And a nation that publicly
377 E.g., The Oxford Handbook of International Human Rights Law 545 (Dinah Shelton ed., 2013) (noting that the prohibition of torture is non-derogable). 378 Sarah Joseph et al., Seeking Remedies for Torture Victims: A Handbook on the Individual Complaints Procedures of the UN Treaty Bodies 488 (Boris Wijkström ed., 2006) (“The absolute nature of the prohibition of torture under treaty law is reinforced by its higher, jus cogens status under customary international law. Jus cogens status connotes the fundamental, peremptory character of the obligation, which is, in the words of the International Court of Justice, “intransgressible.” There is ample international authority recognising the prohibition of torture as having jus cogens status. The prohibition of torture also imposed obligations erga omnes, and every State has a legal interest in the performance of such obligations which are owed to the international community as a whole.”). 379 The Vienna Convention on the Law of Treaties provides that “[a] State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless: (a) [T]he reservation is prohibited by the treaty; (b) [T]he treaty provides that only specifed reservations, which do not include the reservation in question, may be made; or (c) [I]n cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty.” Vienna Convention on the Law of Treaties art. 19, May 23, 1969, 1155 U.N.T.S. 331. Although the United States has not ratifed the Vienna Convention, it is considered to be the authoritative statement of the customary law of treaties. Meyer, Customary International Law in the 21st Century, in Progress in International Law 197, 210 (Russell A. Miller & Rebecca M. Bratspies eds., 2008) (“[D]espite the fact that the United States has not ratifed the Vienna Convention on the Law of Treaties, other states view the United States as being bound by the customary law of treaties. Insofar as the Vienna Convention is the most authoritative statement of what the customary law of treaties is, the United States is bound by the terms of the treaty.”). Moreover, U.S. law already provides that a State Party to the Convention Against Torture cannot use the “lawful sanctions” exception in Article 1 to “defeat the object and purpose of the Convention to prohibit torture.” 8 C.F.R. § 208.18(a)(3) (2018). 380 Chris Ingelse, The UN Committee against Torture: An Assessment 391 (2001) (“In view of the object and purpose of the Convention against Torture, the objective of the Committee is to combat torture.”); United Nations Convention Against Torture art. 2(1), Feb. 4, 1985, 1465 U.N.T.S. 85 (“Each State Party shall take efective legislative, 90 Bessler renounces torture should not, logically, then be allowed to turn around and engage in acts that bear all the indicia of torture. As one commentator, writing about the Vienna Convention on the Law of Treaties, has aptly pointed out: “[A] reservation going against a treaty’s object and purpose would be one whereby a State ratifying the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 seeks to exclude torture from it.”381 A U.S. understanding of the Convention Against Torture— part of the U.S. reservations, understandings, and declarations (“RUDs”) to the convention—specifcally refects the U.S. Senate’s concern that the “lawful sanctions” language may be too expansive.382 Indeed, case law already makes clear that even a “lawful sanction” in a country must not defeat the “object and purpose” of the Convention Against Torture.383 For example, in Nuru v. Gonzales,
administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.”). 381 Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties 272 (2009). 382 See Louis Henkin, U.S. Ratifcation of Human Rights Conventions: The Ghost of Senator Bricker, 89 Am. J. Int’l L. 341, 341−48 (1995) (noting the U.S. ratifcation of the Convention Against Torture in 1994 along with a package of RUDs); Pierre v. Gonzales, 502 F.3d 109, 120 (2d Cir. 2007) (“[T]he United States understands that a State Party could not through its domestic sanctions defeat the object and purpose of the Convention to prohibit torture.” (quoting 136 Cong. Rec. S17,486-01, S17,491)); Tun v. INS, 445 F.3d 554, 566, 571 (2d Cir. 2006) (citations omitted) (“‘lawful sanctions’ ‘do not include sanctions that defeat the object and purpose of the Convention Against Torture to prohibit torture’”; “the Senate’s understanding that ‘a State Party could not through its domestic sanctions defeat the object and purpose of the Convention to prohibit torture,’ 136 Cong. Rec. S17491, ¶ II (c), has been incorporated into this country’s refugee law.”); see also Nuru v. Gonzales, 404 F.3d 1207, 1221 (9th Cir. 2005) (italics in original) (“[T]he Attorney General promulgated implementing regulations defning ‘lawful sanctions’ as ‘judicially imposed sanctions and other enforcement actions authorized by law, including the death penalty,’ but only so long as those sanctions do not ‘defeat the object and purpose of [CAT] to prohibit torture.’” (quoting 8 C.F.R. § 1208.18(a)(3) (2018))). 383 Garcia-Miller v. Holder, 755 F.3d 1026, 1033 (9th Cir. 2014) (quoting Nuru, 404 F.3d at 1221) (“Torture is ‘an extreme form of cruel and inhuman treatment,’ 8 C.F.R. § 208.18(a)(2), ‘that either (1) is not lawfully sanctioned by that country or (2) is lawfully sanctioned by that country, but defeats the object and purpose of CAT[.]’”); Zhang v. Gonzales, 214 F. App’x 3, 5 (2d Cir. 2007) (citations omitted) (“To the extent that the agency found that Zhang’s prior treatment did not qualify because the harm he identifed was the result of a lawful sanction, we fnd that the beating and dousing VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 91 the Ninth Circuit put it this way: “[T]orture cannot be ‘inherent in or incidental to lawful sanction’ and is never a lawful means of punishment. The ofcial sanctioning of torture necessarily defeats the object and purpose of the Convention. CAT outlaws torture absolutely . . . .”384 In that same vein, it is clear that the protection provided by the Convention Against Torture extends to anyone accused of a crime385 or imprisoned for one.386 There are existing U.S. regulations that purport to include
in water were sanctions that defeated the object and purpose of CAT and therefore could qualify if that mistreatment otherwise meets the defnition of torture under the regulations and BIA and court decisions.”); see also Pendrak v. Holder, 375 Fed. App’x 439, 443 (6th Cir. 2010) (emphasis added) (“‘[L]awful sanctions’ that do not defeat the object and purpose of the CAT are excluded from the defnition of torture.”). 384 Nuru, 404 F.3d at 1222. 385 Lian v. Gonzales, 201 Fed. App’x 808, 810 (2d Cir. 2006) (quoting Khouzam v. Ashcroft, 361 F.3d 161, 169 (2d Cir. 2004)) (“[I]n Khouzam, we interpreted this provision to mean that CAT ‘extend[s] to situations where the victim has been accused of a crime,’”). As the Second Circuit emphasized in Khouzam: “When the Senate considered the CAT, its concern over the CAT’s reference to ‘lawful sanctions’ led it to qualify its ratifcation with the understanding that a state ‘could not through its domestic sanctions defeat the object and purpose of the Convention to prohibit torture.’ In directing the Attorney General to implement the CAT subject to the Senate’s understandings, it was Congress’ aim for the CAT’s protections to extend to situations where the victim has been accused of a crime.” Khouzam, 361 F.3d at 169. 386 E.g., J. Herman Burgers & Hans Danelius, The United Nations Convention Against Torture: A Handbook on the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 120−21 (1988) (“The 1975 Declaration was drawn up by the Fifth UN Congress on the Prevention of Crime and the Treatment of Ofenders in response to a request from the General Assembly ‘to include, in the elaboration of the Standard Minimum Rules for the Treatment of Prisoners, rules for the protection of all persons subjected to any form of detention or imprisonment (italics added) against torture and other cruel, inhuman or degrading treatment or punishment’. Two years after the adoption of the 1975 Declaration, the General Assembly requested the Commission on Human Rights to draw up a draft convention ‘in the light of the principles embodied in the Declaration’. All work undertaken in the framework of the Commission for preparing the present Convention was performed under an agenda item reading ‘Question of the human rights of all persons subjected to any form of detention or imprisonment (italics added)’. The connection between the phenomenon of torture as dealt with in the Convention and deprivation of liberty is also apparent from articles 10 and 11 which explicitly refer to persons ‘subjected to any form of arrest, detention or imprisonment’.”). 92 Bessler the death penalty as a “lawful sanction,” but those regulations also emphasize that “lawful sanctions” do not include “sanctions that defeat the object and purpose of the Convention Against Torture to prohibit torture.”387 In fact, when the U.S. Senate ratifed the Convention Against Torture in 1994, it crafted the following understanding to make clear that the “lawful sanctions” exception was not without limits: “[T]he United States understands that a State Party could not through its domestic sanctions defeat the object and purpose of the Convention to prohibit torture.”388 In
387 8 C.F.R. § 208.18(a)(3) (2018) (“Torture does not include pain or sufering arising only from, inherent in or incidental to lawful sanctions. Lawful sanctions include judicially imposed sanctions and other enforcement actions authorized by law, including the death penalty, but do not include sanctions that defeat the object and purpose of the Convention Against Torture to prohibit torture.”). Those regulations also cannot somehow modify what a torturous act is; the factual nature of an act does not change with how one describes it. A pronouncement on a piece of paper or in the Code of Federal Regulations cannot transform a torturous act into a non- torturous one. The act has the characteristics inherent in it, and in the case of the death penalty those characteristics (which include the fact that capital charges and death sentences constitute death threats) are immutable. 388 Gail H. Miller, Defning Torture, in Occasional Paper #3 (Benjamin N. Cardozo Sch. of Law/Floersheimer Ctr. for Constitutional Democracy, New York, N.Y.), Dec. 2005, at 21. In the past, it has been noted that the “lawful sanctions” provision of the Convention Against Torture has “precluded arguments that capital punishment constitutes torture.” Id. at 20. But capital punishment has become unlawful in many places, and there has been much controversy surrounding the “lawful sanctions” exception (e.g., as regards the use corporal punishments in some countries). As one commentator notes: “Many signatories agree that the lawful sanctions language creates problematic ambiguities. It diminishes the universality of the defnition by infusing exceptions based on national law. As practices that may be lawful in one state may be unlawful in another, this provision undermines the efort to achieve a uniform defnition of torture.” Id. at 21. “The U.N. Special Rapporteur on Torture, Nigel S. Rodley, recognized the potential slippery slope of the lawful sanctions exemption and has interpreted the provision so that diferences in national laws would not efect the strength of the CAT. Rodley concluded that the term ‘lawful sanctions’ refers to practices that the international community widely accepts as permissible sanctions, such as imprisonment. He cited the Standard Minimum Rules for the Treatment of Prisoners as an example of international standards that may guide determinations of acceptable practices. In particular, Rodley concluded that corporal punishment may amount to torture: ‘I cannot accept the notion that the administration of such punishments as stoning to death, fogging and amputation—acts which would be unquestionably unlawful in, say, the context of custodial interrogation—can be deemed lawful simply because the punishment VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 93 other words, an act of torture is an act of torture—and a country cannot turn a torturous act into a non-torturous one simply by labeling it a “lawful sanction.”389 Given that the Eighth Amendment has already been interpreted to bar torture390 and that the Eighth Amendment’s meaning evolves with the times,391 and given that the modern defnition and understanding of torture now plainly includes both physical and mental forms of torture,392 the U.S. Supreme Court should rule that death sentences and executions constitute impermissible sanctions because death threats are extremely cruel and torturous in nature.393 Torture, by defnition, involves the infiction of severe pain or sufering,394 and that is exactly what
has been authorized in a procedurally legitimate manner, i.e. through the sanction of legislation, administrative rules or judicial order. To accept this view would be to accept that any physical punishment, no matter how torturous and cruel, can be considered lawful, as long as the punishment has been duly promulgated under the domestic law of a State.’” Id. at 22. 389 Ghebrehiwot v. Attorney General of U.S., 467 F.3d 344, 359 (3d Cir. 2006) (citations omitted) (“[T]he regulation defnes ‘lawful sanctions’ as ‘judicially imposed sanctions and other enforcement actions authorized by law, . . .’ but only so long as those sanctions do not ‘defeat the object and purpose of the [CAT] to prohibit torture.’ Consequently, ‘[a] government cannot exempt torturous acts from CAT’s prohibition merely by authorizing them as permissible forms of punishment in its domestic law.’”); Khouzam v. Ashcroft, 361 F.3d 161, 169 (2d Cir. 2004) (“It would totally eviscerate the CAT to hold that once someone is accused of a crime it is a legal impossibility for any abuse inficted on that person to constitute torture.’”). 390 Linda E. Carter et al., Understanding Capital Punishment § 4.04 (3d ed. 2012) (“the Eighth Amendment prohibits torture or barbaric punishments”). 391 Moore v. Texas, 137 S. Ct. 1039, 1048 (2017) (quoting Hall v. Florida, 134 S. Ct. 1986, 1992 (2014)) (“‘To enforce the Constitution’s protection of human dignity,’ we ‘loo[k] to the evolving standards of decency that mark the progress of a maturing society,’ recognizing that ‘[t]he Eighth Amendment is not fastened to the obsolete.’”). 392 E.g., Encyclopedia of Interpersonal Violence 709 (Claire M. Renzetti & Jefrey L. Edelson eds., 2008) (discussing physical and psychological torture). 393 Bessler, The Death Penalty as Torture, supra note 26, at 217−19. 394 State v. Piper, 709 N.W.2d 783, 799 (S.D. 2006) (“Torture requires: ‘(1) the unnecessary and wanton infiction of severe pain, agony, or anguish; and (2) the intent to infict such pain, agony or anguish . . . .’”); State v. Zagorski, 701 S.W.2d 808, 814 (Tenn. 1985) (“Although the victims died from gunshot wounds, the defendant also slit their throats, leaving them to bleed to death in the woods. This evinces depravity of mind and is a form of torture. Defendant’s actions were an infiction of gratuitous violence, and needless mutilation of victims who were already helpless from fatal wounds . . . .”); cf. State v. Holman, 540 S.E.2d 18, 23 (N.C. 2000) (“We have interpreted 94 Bessler the death penalty—an unnecessary, barbarous and dehumanizing punishment—does.395 In a world of maximum-security prisons and life-without-parole sentences, death sentences and executions are also completely unnecessary.396
VI. Conclusion The psychological torture associated with capital punishment is self-evident and undeniable. Death threats have long been recognized as a form of torture, and there is no denying that the death penalty involves the use of death threats and worse (i.e. actual executions). Capital punishment, in truth, is a torturous practice hiding in plain sight. It has been used for centuries, with jurists in the past only occasionally, as in People v. Anderson,397 taking note of its torturous nature. In the eighteenth century, Enlightenment thinkers thought of torture and capital punishment in separate categories. When the Italian philosopher Cesare Beccaria, the anti-death penalty pioneer, wrote in Dei delitti e delle pene (1764) about torture and capital punishment, he did so in separate chapters. Jeremy Bentham, the English criminal-law theorist, also conceptualized and compartmentalized torture and punishment as separate practices.398 In writings not published in his lifetime, Bentham infamously justifed the use of torture on the basis of utilitarianism, with pre-
the phrase ‘unnecessarily torturous’ to encompass both physical and psychological torture, and to include a killing that leaves the victim aware of impending death but helpless to prevent it.”). 395 Gabriele Schwab, Haunting Legacies: Violent Histories and Transgenerational Trauma 155 (2010) (“We should no longer think of torture as a practice that happens in a torture chamber or dungeon and consists exclusively of the unnecessary and willful infiction of atrocious bodily pain, but as a much more encompassing practice of inficting unnecessary pain and instrumentalizing pain for punitive and disciplinary measures or for purposes of control.”). 396 Bessler, Cruel and Unusual, supra note 190, at 334; see also E. Thomas Sullivan & Richard S. Frase, Proportionality Principles in American Law: Controlling Excessive Government Actions 132 (2009) (“The means-proportionality argument is that the death penalty is unnecessary and therefore excessive relative to the next-most-severe alternative penalty (life in prison, with or without parole) whenever death adds no additional deterrent or other social benefts.”). 397 People v. Anderson, 493 P.2d 880, 894 (1972) (referring to the “psychological torture” associated with the death penalty). 398 Bessler, The Death Penalty as Torture, supra note 26, at 310−11 n.17. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 95 trial judicial torture frequently thought of in the civil law context as necessary to procure confessions (with post-conviction torture then used to discover the names of accomplices).399 But it is now crystal clear, as confrmed by the text of the Convention Against Torture, that punishments themselves can be torturous in nature. And whereas torture was largely seen in Beccaria and Bentham’s time as operating on the body, it is now clear that either physical or mental torture is possible—and that both are strictly prohibited. In reality, capital punishment has always been torturous, even if it was more torturous in Medieval times when ofenders were disemboweled and drawn and quartered or burned or boiled alive400 instead of being put to death through lethal injection.401 Before Furman v. Georgia,402 the California Supreme Court—in a telling admission—candidly opined in its 1972 decision in People v. Anderson: “The cruelty of capital punishment lies not only in the execution itself and the pain incident thereto, but also in the dehumanizing efects of the lengthy imprisonment prior to execution during which the judicial and administrative procedures essential to due process of law are carried out.”403 “Penologists and medical experts agree,” that court determined, “that the process of carrying out a verdict of death is often so degrading and brutalizing to the human spirit as to constitute psychological torture.”404 “When people on death rows are waiting to die,” the wrongfully convicted boxer Rubin “Hurricane” Carter stressed after his own exoneration, “it is easy for me to feel exactly what they are going through: the torture of waiting, the
399 Michelle Farrell, On Torture 241−45 (Apr. 26, 2011) (unpublished Ph.D. thesis, National University of Ireland Galway), https://aran.library. nuigalway.ie/bitstream/handle/10379/2171/FarrellM_OnTorture_PhD2011. pdf?sequence=1&isAllowed=y. See also Leonore Loft, Passion, Politics, and Philosophie: Rediscovering J.-P. Brissot 112 (2002); Thomas Glyn Watkin, An Historical Introduction to Modern Civil Law 415 (2017). 400 Bessler, The Death Penalty as Torture, supra note 26, at 3−4 (describing ancient punishments). 401 Fordham law professor Deborah Denno has written at length about the progression of methods of execution in the United States. E.g., Deborah W. Denno, Lethal Injection Chaos Post-Baze, 102 Geo L.J. 1331 (2014); Deborah W. Denno, The Lethal Injection Quandary: How Medicine Has Dismantled the Death Penalty, 76 Fordham L. Rev. 49 (2007); Deborah W. Denno, Getting to Death: Are Executions Constitutional?, 82 Iowa L. Rev. 319 (1997). 402 Furman v. Georgia, 408 U.S. 238 (1972). 403 People v. Anderson, 493 P.2d 880, 894 (Cal. 1972). 404 Id. 96 Bessler helplessness, the pain and humiliation, and the gagging death, the obliteration.”405 “It is real torture,” Oklahoma death row inmate, Richard Glossip, similarly observed from frst-hand experience after his execution was delayed at the last minute after he spent 50 days in a windowless cell getting ready for his scheduled execution. “You are just in that cell and it is just like a morgue,” Glossip reported.406 It is hypocritical for governments and state ofcials to condemn the use of death threats, then turn around and use threats of death as part of a misguided policy that, in all candor, strays into the land of torture. It is also hypocritical for the judicial system to avoid labelling death sentences and executions as torturous when various non-lethal acts (and properly so) are already so characterized.407 When a person is murdered and the victim is aware of, but helpless to prevent, death, American courts readily label the ofender’s actions as involving an act of extreme cruelty (i.e. torture).408 Yet, when it is the ofender who is aware of, but helpless to prevent, his or her own death, the judicial system currently terms it a “lawful sanction.” Just as governments should not tolerate individuals making death threats, societies should not themselves resort to Orwellian or Kafkaesque death threats. As Albert Camus warned against state-sanctioned killing and the death penalty’s disproportionality in relation to acts of criminality in “Refections on the Guillotine”:
405 Rubin “Hurricane” Carter & ken klonsky, Eye of the Hurricane: My Path from Darkness to Freedom 203 (2011). 406 Leon Neyfakh, Richard Glossip Describes Preparing to Die, Slate (Nov. 13, 2015), http://www.slate.com/articles/news_and_politics/crime/2015/11/ richard_glossip_the_condemned_oklahoma_prisoner_describes_preparing_ to_die.html. 407 John D. Bessler, What I Think About When I Think About the Death Penalty, 62 St. Louis U. L.J. 781, 790 (2018); John D. Bessler, The Abolitionist Movement Comes of Age: From Capital Punishment as a Lawful Sanction to a Peremptory, International Law Norm Barring Executions, 79 Mont. L. Rev. 7, 38−40 (2018). 408 E.g., State v. Cooper, 718 S.W.2d 256, 259−60 (Tenn. 1986) (“It would be difcult to describe a more deliberate, brutal and horrifying infiction of death upon an innocent, unarmed person. In our opinion the circumstances of this homicide were heinous, atrocious and cruel. The deliberate taunting and threatening of a victim for hours before shooting at her once, causing her and her fellow employee to dive to the foor for safety, and then deliberately pumping the contents of four shotgun shells into her while she was helplessly trapped inside a small building could, in our opinion, convince a reasonable jury that the victim was subjected to torture and that the perpetrator of such conduct evinced depravity of mind.”). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 97
For there to be equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would infict a horrible death on him and who, from that moment onward, had confned him at his mercy for months. Such a monster is not encountered in private life.409
409 “Refections on the Guillotine,” in Resistance, Rebellion, and Death (J. O’Brien, trans. 1960). 98 Storrow
Family Protection in the Law of Succession: The Policy Puzzle
Richard F. Storrow*1
Protecting surviving spouses and dependent children is one of the most important policies of the law of wills and intestacy. To promote this policy, succession law diminishes the power of testation in a variety of ways that shield surviving spouses and children from disinheritance. The specifc policies behind these protections have long puzzled scholars, and a comprehensive study based on a survey of statutes in all 50 states, the fve main territories, and the District of Columbia has never before been conducted. After executing such a study, this article uncovers a remarkable diversity of family protection statutes in the law of succession and concludes that uniting them is a combination of concerns that decedents not use their testamentary freedom in ways that impoverish those who are dependent upon them or work unfairness against family members who have contributed in important ways to the accumulation of their wealth. In addition to these concerns is a notable ambivalence about the extent to which family protection statutes should undercut the expectations of those who have been promised a share of a decedent’s estate.
*1 Professor of Law, City University of New York School of Law. I thank CUNY School of Law for its generous support of my research. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 99
Table of Contents I. Introduction ...... 100 II. The Mechanics of Family Protection ...... 103 A. Intestate Succession ...... 104 B. The Elective Share ...... 107 C. Omitted Spouses and Children ...... 112 D. Property Set-Asides ...... 116 E. Monetary Allowance ...... 120 III. The Policies of Family Protection ...... 122 A. Allowances ...... 124 B. Intestacy and Pretermitted Heirs ...... 127 C. The Elective Share ...... 131 IV. Creditor’s Rights and Family Protection ...... 139 A. Creditors in Probate Law ...... 139 B. Family-Member Contract Creditors and Family Protection ...... 142 V. Conclusion...... 153 100 Storrow
I. Introduction The family has long been considered a cornerstone of civil society.1 It stands to reason, then, that legal institutions, including our system of inheritance, strive to protect those who participate and have participated in familial arrangements.2 In particular, the protection of the nuclear family, consisting of one’s spouse and children, is a salient policy in both the law of descent and distribution and the law of wills. Thomas Atkinson traces the notion that widows and minor children need temporary shelter and sustenance when heads of household die to the Magna Carta’s quarantine of dower or widow’s quarantine provision, which gave the widow the right to occupy the homestead of her deceased husband for 40 days after his death.3 Intestacy law expresses solicitude for surviving kin and channels a decedent’s bounty into their possession, favoring the intestate’s surviving spouse and descendants over other family members.4 The law of wills recognizes the freedom of testators to depart from these default preferences, but it too embodies explicit protections for surviving spouses and children that curb even a testator’s plainly expressed intention not to beneft his family. Examples include the surviving spouse’s elective share;5 the surviving spouse’s and dependent children’s homestead, family allowance, and personal property claims;6 and amounts guaranteeing a portion of the estate to spouses and children omitted from a will executed before the marriage or birth.7
1 Martha Albertson Fineman, The Autonomy Myth: A Theory of Dependency 72 (2004) (discussing the ideology that the family is the “cradle of citizenship”); Laurence H. Tribe, Lawrence v. Texas: The “Fundamental Right” That Dare Not Speak Its Name, 117 Harv. L. Rev. 1893, 1934 (2004). 2 Ralph C. Brashier, Inheritance Law and the Evolving Family 7 (2004) (“[P]robate laws ultimately should promote and protect the state. Fortuitously, recognizing members of the decedent’s created family as heirs has a stabilizing efect on family life and society as a whole, as those family members are also the people most likely to be dependent upon him.”). 3 Thomas E. Atkinson, Handbook of the Law of Wills 128 (2d ed. 1953); see also Janet Loengard, Interpretation and Re-interpretation of a Clause: Magna Carta and the Widow’s Quarantine, 25 Wm. & Mary Bill Rts J. 403, 403 (2016) (quoting the Magna Carta). The use of the word quarantine in this context is based on the Latin word for forty. Lawrence M. Friedman, Dead Hands: A Social History of Wills, Trusts, and Inheritance Law 36 (2009). 4 See, e.g., Brashier, supra note 2, at 4. 5 See infra Part II.B. 6 See infra Parts II.D, II.E. 7 See infra Part II.C. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 101
The mechanisms used in succession law to protect the interests of surviving family members are well understood by scholars and practitioners.8 Less understood and studied is their potential to come into confict with each other and how these conficts may be manifestations of competing public policies. Consider the following case study example. May, who has no children, executes a will that devises her estate to her husband Saul and her sister Nance in equal shares. Two years later, May and Saul adopt Cai. May then dies without having changed her will or having provided a settlement outside of her will for Cai. At her death, May has a probate estate of $500,000 available for distribution after all taxes, debts and funeral expenses have been paid.9 Saul would likely be perfectly happy to share the estate with Nance. After all, the typical elective share is only one-third of the decedent’s estate.10 Some jurisdictions will augment this estate with certain inter vivos and non-probate transfers May may have made during her lifetime.11 Since one-third of May’s probate estate would be no more than $167,000, May would have to have entered into some rather sizable inter vivos arrangements for the elective share to be appealing to Saul.12 But if Cai claims a pretermitted child’s share of May’s estate, which typically amounts to an intestate share, then in many jurisdictions Cai will be able to claim fully half of the probate estate,13 leaving $250,000 to be
8 See, e.g., Thomas P. Gallanis & Josephine Gittler, Family Caregiving and the Law of Succession: A Proposal, 45 U. Mich. J.L. Reform 761 (2012) (arguing in favor of an elective share for family members who provided the decedent uncompensated care in the decedent’s home); Mark Glover, Formal Execution and Informal Revocation: Manifestations of Probate’s Family Protection Policy, 34 Okla. City U.L. Rev. 411 (2009); Efrain Gonzalez Tejera, Mortis Causa Wealth Transfer and the Protection of the Family: The Spanish-Puerto Rican Experience, 60 Tul. L. Rev. 1231, 1244 (1986); L. William Schmidt, Jr., Family Protection under the Uniform Probate Code, 50 Denv. L.J. 137, 144 (1973) (explaining how family protection mechanisms are “deeply rooted in the historical foundations of probate law”). 9 Debts, funeral expenses, costs of administration, and exempt property are deducted from the estate before computing the elective share or the share of a pretermitted child. See, e.g., Kans. Stat. Ann. § 59-6a204 (West 2018); In re Bassford’s Will, 127 N.Y.S.2d 653, 657–58 (Sur. Ct. 1953). 10 See, e.g., Brashier, supra note 2, at 15. 11 Id. at 18 (describing the augmented estate). 12 Note that if May did make an extra-testamentary settlement for Cai, that sum might well be used to augment the probate estate for elective share purposes. 13 The sum would be less in jurisdictions that guarantee the surviving spouse a minimum amount, e.g., New York’s provision granting surviving spouses of intestate decedents $50,000 plus half the balance of the estate. N.Y. Est. 102 Storrow shared between Saul and Nance. Sharing $250,000 with Nance will certainly not be as attractive to Saul as electing against the will. A fnal wrinkle, of course, is the possibility that May is contractually committed to leave Nance half of her estate. To what extent should such a contractual obligation impinge upon Saul’s and Cai’s statutory rights? The potential for confict between family protection regimes, contractual obligations and a testator’s expressed preferences has seldom arisen in reported litigation.14 Treatises, encyclopedias, casebooks and even the Restatement skirt the issue. The reason for the lack of discussion of this issue may be due to the fact that, as New York’s Surrogate’s Court Judge James Foley recognized,
[e]xperience has shown that in the great majority of wills, the preliminary legacies are given to charities, distant relatives, and friends of the testator. The residue is usually given to the spouse for life or absolutely or to the children or to the dependent and nearer relatives either outright or in trust.15
In other words, given that most wills are already consonant with family protection policies, the confict between promoting family protection and a testator’s attempt to short-circuit it seldom arises. Nonetheless, a study of this subject will yield signifcant insights into what the law seeks to achieve when singling out spouses and children for special treatment that can damage the expectations of more distant heirs and creditors. The role of creditors in family protection schemes has been largely ignored, but this role is important for understanding whether family protection schemes are truly about providing support. What explains, for example, the fact that the elective share and the shares of pretermitted children and spouses are subject to creditors’ claims,16 but that set-asides and the
Powers & Trusts Law § 4-1.1(a)(1) (LexisNexis 2018). In New York, then, Cai would be entitled to $225,000. 14 Some well-known examples of decisions that confront the confict are Shimp v. Huf, 556 A.2d 252 (Md. 1989), and Via v. Putnam, 656 So. 2d 460 (Fla. 1995), discussed infra Part IV. 15 In re Byrnes’ Estate, 267 N.Y.S. 627, 631 (Sur. Ct. 1933); see also Salvaging a Will After the Widow Renounces, 61 Harv. L. Rev. 850, 851 (1948). 16 See, e.g., Fla. Stat. Ann. § 733.805(1) (LexisNexis 2018); N.Y. Est. Powers & Trusts Law § 5-1.1-A(a)(2) (LexisNexis 2018); 33 R.I. Gen. Laws § 33-6-27 (2018); Brakefeld v. Hocutt, 779 So. 2d 1165, 1166 (Ala. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 103 family allowance are not?17 At a state-specifc level, what explains Oklahoma’s shielding of legacies to surviving spouses from creditors until legacies to others have been charged?18 What explains Rhode Island’s protection of the surviving spouse’s mandatory life estate in all of the decedent’s real estate against unsecured creditors?19 The phantasmagoric variety of legislation in this area belies the notion that family protection policies are reducible to promoting either necessary support or fairness in the dissolution of the marital economy. The fact that the Uniform Laws Commission has explicitly grounded its proposed reforms of the elective share in the theory that marriage is an economic partnership proves little, since those reforms remain unrefected in the legislation of most jurisdictions. Part II of this article explores the intricate mechanics of family protection legislation in all 50 states, the District of Columbia, and the fve main overseas territories. This up-to-date and comprehensive survey is made necessary by its absence from the scholarship in this area. The research lays bare the bewildering array of mechanisms diferent states have enacted to protect the decedent’s surviving family members. The survey lays the groundwork for Part III, which takes a closer look than has been attempted to date at the sometimes conficting policies that appear to drive family protection enactments. Part IV probes more deeply into the conficts between family members who wish to claim statutory rights and those the decedent promised to remember in his will. Such disputes have been resolved in incoherent ways by courts at diferent levels of the judiciary and reveal more fully that the policy behind family protection in the law of succession, at least in this area, remains indeterminate but leans noticeably in the direction of benefting those who remain married until death.
II. The Mechanics of Family Protection The law of wills and estates displays abundant solicitude for surviving family members. This section explores how family protection regimes work to achieve these aims. Highlighted are rules of intestate succession, pretermission of spouses and children, the spouse’s elective share and the family’s rights to the
2000). Tennessee exempts the elective share from the claims of unsecured creditors. Tenn. Code Ann. § 31-4-101(d) (2018). 17 See, e.g., Brakefeld v. Hocutt, 779 So. 2d 1165, 1166 (2000). 18 Okla. Stat. Ann. tit. 84, §5 (2018) (West 2018). 19 33 R.I. Gen. Laws § 33-25-3 (2018). 104 Storrow homestead, personal property and a monetary allowance.20 Statutes that automatically revoke a will’s provisions upon divorce are not considered herein.21
A. Intestate Succession When a person dies without a will, his surviving spouse is entitled to a share of the estate unless guilty of certain forms of bad behavior.22 The decedent’s surviving children may or may not be entitled to a share of the estate. The shares of surviving spouses and children in intestacy are completely compatible in all states. In general, they take one of two forms. Either the surviving spouse takes the entire estate unless the decedent had children in another relationship, in which case she shares with the surviving children and their representatives,23 or the surviving spouse shares with any descendants of the decedent.24 In Maryland, the share of
20 Categorized as “statutory allowances,” the latter four protections, apart from the elective share, are virtually ignored by the Restatement, except in its remarks that these allowances may be satisfed by will substitutes in appropriate cases, Restatement (Third) of Prop.: Wills & other Donative Transfers § 7.2 cmt b (Am. Law Inst. 1999), and that a slayer forfeits his right to any of these allowances, Restatement (Third) of Prop.: Wills & other Donative Transfers § 8.4 cmt j (Am. Law Inst. 1999). 21 See, e.g., Colo. Rev. Stat. § 15-11-804 (2018). 22 See, e.g., N.Y. Est. Powers & Trusts Law § 5-1.2(5) (LexisNexis 2018) (demonstrating unjustifable abandonment of decedent spouse without consent); 33 R.I. Gen. Laws § 33-1.1-2 (2018) (depriving a slayer of the decedent of any property in the decedent’s estate); Middleton v. Lockhart, 43 S.W.3d 113, 121 (Ark. 2001) (ruling that murdering one’s spouse works forfeiture of homestead rights); Susan N. Gary, The Probate Defnition of Family: A Proposal for Guided Discretion in Intestacy, 45 U. Mich. J.L. Reform 787, 790 nn.18–19 and accompanying text (2012). 23 See, e.g., Ariz. Rev. Stat. §§ 14-2102(1), 14-2103(1) (LexisNexis 2018); Colo. Rev. Stat. §§ 15-11-102(1)(b), 15-11-103(2) (2018); Fla. Stat. Ann. § 732.102(1)–(3) (LexisNexis 2018); Ohio Rev. Code Ann. § 2105.06(B)–(D) (LexisNexis 2018); Tex. Est. Code Ann. § 201.003(c) (West 2017) (applying to decedent’s community estate); Vt. Stat. Ann. tit. 14, § 311(2) (2018); Unif. Prob. Code §§ 2-102(4), 2-102A(4) (amended 2008); Brashier, supra note 2, at 4. Iowa’s formulation also contains the provision that she must share if all of his children are theirs but she has at least one that is hers alone. Iowa Code Ann §§ 633.211, 633.212, 633.219(1) (West 2018). If the surviving spouse shares with the decedent’s issue, her share must equal at least $50,000. Iowa Code Ann § 633.212(4) (West 2018). 24 Cal. Prob. Code § 6401(c)(2)–(3) (Deering 2018) (making the share dependent upon the number of children and their issue surviving the VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 105 the surviving spouse depends upon whether the surviving kindred include a minor child.25 In Arkansas and Kentucky, surviving children take the entire estate subject to the surviving spouse’s dower or curtesy rights.26 And in Rhode Island, the surviving children take the decedent’s real estate subject to a life estate in the surviving spouse.27 The surviving spouse is entitled to $50,000 and one-half of the balance of the personal property28 and can also apply for up to $150,000 of the decedent’s real estate.29 In some iterations, if the surviving spouse has a child from another union, she must nonetheless share the decedent’s estate with the surviving children
decedent); N.C. Gen. Stat. § 29-14(a)(1)–(2) (2018) (same); Conn. Gen. Stat. Ann. § 45a-437(a)(3)–(4) (West 2018); Del. Code Ann. tit. 12, § 502(3)–(4) (2018) (share depends on whether the surviving children are also the children of the surviving spouse); Ga. Code Ann. § 53-2-1(c)(1) (2018) (requiring that surviving spouse receive at least one-third); 755 Ill. Comp. Stat. Ann. 5 / 2-1(a) (LexisNexis 2018); Kan. Stat. Ann. §§ 59-504, 59- 506 (West 2018); La. Civ. Code Ann. §§ 888, 890 (2018) (surviving spouse takes usufruct in decedent’s share of community property); Md. Code Ann., Est. & Trusts § 3-103 (LexisNexis 2018); Mich. Comp. Laws Serv. § 700.2102(1) (LexisNexis 2018); Miss. Code Ann. § 91-1-7 (2018); Mo. Ann. Stat. § 474.010(1)(b)–(c) (West 2018); 8 N. Mar. I. Code § 2912(b) (2018); Okla. Stat. Ann. tit. 84, §§ 213(B)(1)(c)–(d), 213(B)(2)(a) (West 2018); 20 Pa. Stat. and Cons. Stat. Ann. §§ 2102(3)–(4), 2103(1) (West 2018); P.R. Laws Ann. tit. 31, § 2411 (2018); 33 R.I. Gen. Laws §§ 33-1- 1(1), 33-1-5, 33-1-10(2) (2018); Tex. Est. Code Ann. § 201.002(b) (West 2017) (rule applies to decedent’s separate estate); Atkinson, supra note 3, at 63. 25 Md. Code Ann., Est. & Trusts § 3-102(b)–(c) (LexisNexis 2018). 26 Ark. Code Ann. §§ 28-9-214(1), 28-9-206(b)(1) (2018); Ky. Rev. Stat. Ann. §§ 391.010(1), 391.030(1), 392.020 (LexisNexis 2018). Dower gives the surviving spouse a life estate in a third of the real property of the decedent. Ark. Code Ann. § 28-11-301(a) (2018); see also Tex. Est. Code Ann. § 201.002(b)(3) (West 2017) (applying rule to decedent’s separate estate). If the decedent dies without children, the surviving spouse takes one-half of all of the property unless the property is “ancestral,” in which case the surviving spouse takes only a life estate of one-half of the lands. Ark. Code. Ann. § 28-11-307(a)(1), 28-11-307(b) (2018). American Samoa’s version of dower is a fee simple in one-third of all of the decedent’s property. Am. Samoa Code Ann. § 40.0103 (2011). 27 33 R.I. Gen. Laws §§ 33-1-1, 33-1-5 (2018). Note that this life estate in all of the decedent’s real estate is not limited to cases of intestacy. See 33 R.I. Gen. Laws § 33-25-2(a) (2018). 28 33 R.I. Gen. Laws § 33-1-10(1) (2018); Jerome v. Prob. Court of Barrington, 922 A.2d 119, 122 (R.I. 2007). 29 33 R.I. Gen. Laws § 33-1-6 (2018). 106 Storrow they have in common.30 With some exceptions,31 if the decedent left no children, the surviving spouse takes all,32 and if the decedent left no surviving spouse, the surviving children take all.33 In community
30 Alaska Stat. §§ 13.12.102(a)(3), 13.12.103(1) (2018); Colo. Rev. Stat. §§ 15-11-102(b), 15-11-103(2) (2018); Fla. Stat. Ann. § 732.102(4) (LexisNexis 2018); Unif. Prob. Code §§ 2-102(3), 2-102A(3) (amended 2010). 31 Ala. Code § 43-8-41(1) (LexisNexis 2018). In some states, the surviving spouse may have to share with surviving parents or the decedent’s brothers and sisters and their issue. Ala. Code. §§ 43-8-41(2), 43-8-42(2) (LexisNexis 2018); Alaska Stat. §§ 13.12.102(a)(2), 13.12.103(2) (2018); Cal. Prob. Code §§ 6401(c)(2)(B), 6402(b) (Deering 2018); Colo. Rev. Stat. §§ 15- 11-102(2), 15-11-103(3) (2018); Conn. Gen. Stat. Ann. §§ 45a-437(a)(1), 45a-439(a)(1) (West 2018); Del. Code Ann. tit. 12, §§ 502(1), 503(2)–(3) (2018); Ind. Code Ann. §§ 29-1-2-1(b)(1)–(3), 29-1-2-1 (d)(2) (LexisNexis 2018); Md. Code Ann., Est. & Trusts § 3-102(d) (LexisNexis 2018); Mich. Comp. Laws Serv. §§ 700.2102(1)(c), 700.2103(c) (LexisNexis 2018); N.C. Gen. Stat. §§ 29-14(a)(3), 29-14(b)(3), 29-15(3) (2018); 8 N. Mar. I. Code § 2912(c) (2018); Okla. Stat. Ann. tit. 84, § 213(B)(1)(b) (2), 213(B)(2)(b)–(c) (West 2018) (applying to property not acquired by the “joint industry” of the spouses); 20 Pa. Stat. and Cons. Stat. Ann. §§ 2102(2), 2103(2) (West 2018); Unif. Prob. Code §§ 2-102(2), 2-102A(2), 2-103(a)(2) (amended 2010); Tex. Est. Code Ann. § 201.002(c)(3) (West 2017) (rule applies to one-half of the decedent’s separate real property). In Arkansas, the surviving spouse takes 50% of the estate if there are no surviving descendants and she has been married less than three years to the decedent at the time of his death. Ark. Code Ann. § 28-9-214(2) (2018). In such cases, she shares the estate with the decedent’s parents. Ark. Code. Ann. § 28-9-214(4) (2018). In Rhode Island, if there is a surviving spouse but no children, the decedent’s parents take the decedent’s real estate subject to the spouse’s life estate and also share in the decedent’s personal property. 33 R.I. Gen. Laws §§ 3-1-1, 33-1-5, 33-1-10(1), 33-1-10(3) (2018). Jerome v. Prob. Court of Barrington, 922 A.2d 119, 122 (R.I. 2007) (“In most states, statutory substitutions for dower and curtesy dictate that when a decedent dies intestate and without issue, the surviving spouse receives the entire estate”). 32 Ariz. Rev. Stat. § 14-2102(1) (LexisNexis 2018); Ark. Code Ann. § 28- 9-214(2) (2018); Ga. Code Ann. § 53-2-1(c)(1) (2018); 755 Ill. Comp. Stat. Ann. 5 / 2-1(c) (LexisNexis 2018); Iowa Code Ann. § 633.211 (West 2018); Kan. Stat. Ann. § 59-504 (West 2018); La. Civ. Code Ann. art. 889, 894 (2018); Miss. Code Ann. § 91-1-7 (2018); N.D. Cent. Code § 30.1-04-02(1)(a) (2017); Ohio Rev. Code Ann. § 2105.06(E) (LexisNexis 2018); Okla. Stat. Ann. tit. 84, § 213(B)(1)(b)(1) (West 2018) (applies only to property acquired by the “joint industry” of the spouses); Tex. Est. Code Ann. § 201.003(b)(1) (West 2018) (rule applies to decedent’s community estate); Vt. Stat. Ann. tit. 14, § 311(1) (2018); Unif. Prob. Code § 2-102A(a)(1)(A) (amended 2010). 33 Ariz. Rev. Stat. § 14-203(1) (LexisNexis 2018); Cal. Prob. Code § 6402(a) VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 107 property states, the surviving spouse also inherits the decedent’s one-half of the community property.34
B. The Elective Share In its most conventional form, an election by the surviving spouse to renounce the will guarantees her the “forced share” defned by the applicable statute and substitutes a share of the estate for what the spouse would otherwise have been entitled to under the decedent’s will, in partial intestacy and under certain will substitutes such as a revocable trust.35 She is treated either as if she predeceased the execution of the will36 or as if she predeceased the testator.37 As such, her share will be deemed to pass outside the terms of the will.38 Common elective share provisions entitle the surviving spouse to one-third or 30% of the “augmented” or “elective” estate39
(Deering 2018); Colo. Rev. Stat. § 15-11-103(2) (2018); Ga. Code Ann. § 53-2-1(c)(2)–(3) (2018); 755 Ill. Comp. Stat. Ann. 5 / 2-1(b) (LexisNexis 2018); Iowa Code Ann. § 633.219(1) (West 2018); Kan. Stat. Ann. § 59- 506 (West 2018); La. Civ. Code Ann. art. 888 (2018); 8 N. Mar. I. Code § 2912(d); Ohio Rev. Code Ann. § 2105.06(A) (LexisNexis 2018); Okla. Stat. Ann. tit. 84, § 213(B)(2)(a) (West 2018); Miss. Code Ann. §§ 91- 1-3, 91-1-11 (2018); Mo. Ann. Stat. § 474.010(2)(a) (West 2018); N.C. Gen. Stat. § 29-15(a)(3) (2018); 33 R.I. Gen. Laws §§ 33-1-1(1), 33-1- 10(3) (2018); Tex. Est. Code Ann. § 201.001(b) (West 2017) (rule applies to decedent’s separate estate); Unif. Prob. Code § 2-103(a)(1) (amended 2008); Atkinson, supra note 3, at 63. 34 Ariz. Rev. Stat. § 14-2102(1) (LexisNexis 2018) (if the surviving issue are also issue of the surviving spouse); Cal. Prob. Code § 6401(a) (Deering 2018); Unif. Prob. Code § 2-102A(b) (amended 2010). 35 Iowa Code Ann. § 633.238(3) (West 2018). Some states explicitly recognize an elective share in an intestate decedent’s estate. See, e.g., Tenn. Code Ann. § 31-4-101 (2018). North Carolina gives the surviving spouse an elective share of a life estate in one-third of an intestate decedent’s real property. N.C. Gen. Stat. § 29-30(a) (2018). If the surviving spouse elects a life estate in the homestead under this provision, such an election includes fee simple title to the household furnishings. N.C. Gen. Stat. § 29-30(b) (2018). 36 Md. Code Ann., Est. & Trusts § 3-208(a)(1) (LexisNexis 2018); In re Estate of Eakin, 708 P.2d 476, 477 (Colo. Ct. App. 1985) (“[A]n election to take against a will voids will as to the elector . . . .”). 37 Mo. Ann. Stat. § 474.160(1)(3) (West 2018). 38 In re Estate of Shapiro, 380 N.W.2d 796, 800 (Minn. 1986). 39 Del. Code Ann. tit. 12, § 901(a) (2018); Fla. Stat. Ann. § 732.2065 (LexisNexis 2018); Iowa Code Ann. § 633.238(1) (West 2018); Me. Rev. Stat. Ann. tit. 18-a, § 2-201(a) (2018); Mo. Ann. Stat. § 474.160(1) (1) (West 2018) (increasing the share to one-half of the estate if the any 108 Storrow or $50,000, whichever is greater.40 The share may be as much as one-half if the testator left no descendants.41 Some iterations of the elective share grant generally the lesser of the entire estate if the estate is small or one-third of a larger estate.42 In some states, the statutory share is a refection of dower and gives the surviving spouse a life estate in one-third of the value of all property passing under the will.43 In others, the elective share is the same as an intestate share.44 Obviously, provisions vary widely. The elective share under the Uniform Probate Code, for example, increases with the length of the marriage.45 Several states have similar provisions.46 Depending upon the length of the marriage, these provisions give the surviving spouse the right to elect up to 50% of the marital portion of the augmented estate,47 plus additional assets
descendants survive the decedent); N.Y. Est. Powers & Trusts Law § 5-1.1-A (a)(2) (LexisNexis 2018); Brashier, supra note 2, at 15. But see Vt. Stat. Ann. tit. 14, § 319(a) (2018) (one-half). The augmented or “elective” estate is defned in some jurisdictions as the decedent’s taxable estate. See, e.g., Del. Code Ann. tit. 12, § 902(a) (2018). 40 Alaska Stat. § 13.12.202(a)(1) (2018). 41 755 Ill. Comp. Stat. Ann. 5 / 2-8(a) (LexisNexis 2018); Ind. Code Ann. § 29-1-3-1(a) (LexisNexis 2018) (applying where the testator had no children of another union); Md. Code Ann., Est. & Trusts § 3-203(b) (LexisNexis 2018); Miss. Code Ann. § 91-5-25 (2018); Mo. Ann. Stat. § 474.160(1) (1) (West 2018). 42 Ala. Code. § 43-8-70(a) (LexisNexis 2018). 43 Am. Samoa Code Ann. §§ 40.0103, 40.0105; Conn. Gen. Stat. Ann. § 45a-436(a) (West 2018); Brashier, supra note 2, at 15, 33 (arguing that refections of dower in the elective share perpetuates “the lingering notion of male dominance and female subservience during the marriage”). 44 See, e.g., Ohio Rev. Code Ann. § 2106.01(A) (LexisNexis 2018). Oklahoma’s provision is singular. It entitles the surviving spouse to “an undivided one-half (1/2) interest in the property acquired by the joint industry of the husband and wife during coverture.” Okla. Stat. Ann. tit. 84, § 44(B)(1)–(2) (West 2018). 45 Unif. Prob. Code § 2-203(b) (amended 2008). 46 Colo. Rev. Stat. § 15-11-202(1) (2018); Minn. Stat. Ann. § 524.2- 202(a) (West 2018); N.C. Gen. Stat. § 30-3.1 (2018); Or. Rev. Stat. Ann. § 114.605 (West 2018); Tenn. Code Ann. § 31-4-101(1)(a) (2018); Va. Code Ann. §§ 64.2-308.3(A), 64.2-308.4(B) (2018); S.D. Codified Laws § 29A-2-202 (2018). 47 Colo. Rev. Stat. § 15-11-202(1) (2018); Unif. Prob. Code § 2-202(a) (amended 2013). The “marital portion” results from multiplying the augmented estate by a percentage that increases with the length of the marriage. Colo. Rev. Stat. § 15-11-203(2) (2018); Unif. Prob. Code § 2-209(b) (amended 2013). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 109 necessary to bring the sum to at least $75,000.48 Other jurisdictions provide for more particularized shares. Rhode Island, for example, allows the surviving spouse to renounce the will in favor of her mandatory life estate in the entirety of the decedent’s real estate, the discretionary allowance of real estate in fee, and her intestate share of the decedent’s personal estate.49 In Mississippi, omission of a surviving spouse from a decedent’s will automatically triggers the forced share.50 But in that same state, a surviving spouse is barred from taking a forced share if she has property of her own “equal in value to what would be her lawful portion of her husband’s real and personal estate.”51 If her separate property is not quite equivalent, she may use the forced share to make up the diference.52 Similarly, in some states the value of bequests to the surviving spouse may be deducted from the elective share resulting in a “net elective share.”53 The defnition of the estate against which an election may be taken also varies across states. Some states specify that the share is determined only against the probate or “net” estate.54 Augmenting the probate estate by certain nonprobate transfers is meant to capture amounts the decedent has technically given away, but over which he has retained some control. The frst augmenting provision was enacted in New York in 1966 and served as a model for the Uniform Probate Code’s “augmented estate” provision, promulgated in 1969.55 The elective share may be personal, not available after the
48 Unif. Prob. Code § 2-202(b) (amended 2013). See also Colo. Rev. Stat. § 15-11-202(2)(a) (2018) (providing $50,000 as a minimum share). 49 See 33 R.I. Gen. Laws §§ 33-25-4, 33-28-1 (2018); see also In re Estate of Gervais, 770 A.2d 877, 881 (R.I. 2001). 50 Miss. Code Ann. § 91-5-27 (2018). 51 Id. § 91-5-29. 52 Id. 53 See N.C. Gen. Stat. §§ 30-3.1(a), 30-3.4 (2018); N.Y. Est. Powers & Trusts Law § 5-1.1-A(4) (LexisNexis 2018); see also S.C. Code Ann. §§ 62- 2-206, 62-2-207(a) (2018). 54 Ind. Code Ann. § 29-1-3-1(a) (LexisNexis 2018) (“[T]he court shall consider only such property as would have passed under the laws of descent and distribution.”); Md. Code Ann., Est. & Trusts § 3-203(b) (LexisNexis 2018); S.C. Code Ann. §§ 62-2-201(a), 62-2-202(b) (2018). 55 Raymond C. O’Brien, Integrating Marital Property into a Spouse’s Elective Share, 59 Cath U. L. Rev. 617, 655 (2010). 110 Storrow surviving spouse’s death,56 and must be claimed timely.57 It can also be waived via agreement between the spouses.58 Georgia, a title- theory jurisdiction, does not recognize the elective share.59 Nor do community property states,60 although in his will a testator in a community property state may force his surviving spouse to elect between her homestead and exempt property rights and her one-half interest in the community estate, and the provisions made for her in the will.61 In some states retaining dower, a will provision benefting the surviving spouse is presumed to be in lieu of dower unless a contrary intention is shown.62 In such a jurisdiction, a spouse could
56 See, e.g., Ind. Code Ann. § 29-1-3-4(a) (LexisNexis 2018); Md. Code Ann., Est. & Trusts § 3-204 (LexisNexis 2018); Mo. Ann. Stat. § 474.200 (West 2018); Neb. Rev. Stat. Ann. § 30-2315 (LexisNexis 2018); Okla. Stat. Ann. tit. 84, § 44(B)(4) (West 2018); 33 R.I. Gen. Laws 33-28-2(a) (2018); Wis. Stat. Ann. § 861.09 (West 2018); Unif. Prob. Code § 2-212(a) (amended 2010); In re Estate of Davis, 274 A.2d 491, 494 (Vt. 1971); Atkinson, supra note 3, at 120. 57 Md. Code Ann., Est. & Trusts § 3-206(a)(1)(i)–(ii) (LexisNexis 2018) (stating that a surviving spouse can take an elective share within the later of nine months after decedent’s death or six months after appointment of executor); N.C. Gen. Stat. § 30-3.4(b) (2018) (requiring election within six months after the issuance of letters testamentary or letters of administration); Okla. Stat. Ann. tit. 84, § 44(B)(3) (West 2018); Atkinson, supra note 3, at 120–21. 58 Md. Code Ann., Est. & Trusts § 3-205 (LexisNexis 2018); Mo. Ann. Stat. § 474.120 (West 2018); Neb. Rev. Stat. Ann. § 30-2316(a) (LexisNexis 2018); N.C. Gen. Stat. § 30-3.6 (2018); S.C. Code Ann. § 62-2-204(A) (2018); Wis. Stat. Ann. § 861.10(1) (West 2018); Unif. Prob. Code § 2-213(a) (amended 2010); see, e.g., In re Estate of Barrows, 945 A.2d 1217, 1220 (Me. 2008); see also Campbell v. Campbell, 377 S.W.2d 93, 95 (Ky. 1964) (postnuptial contract waiving dower rights). 59 Alan Newman, Incorporating the Partnership Theory of Marriage into Elective- Share Law: The Approximation System of the Uniform Probate Code and the Deferred-Community-Property Alternative, 49 Emory L.J. 487, 489 n.16 (2000); Brashier, supra note 2, at 27. 60 These states are Arizona, California, Idaho, Louisiana, New Mexico, Nevada, Texas, and Washington. 33 Am. Jur. 2d Federal Taxation ¶ 1653 (2018). 61 Berg v. Bregman, No. B149130, 2002 WL 31256677, at *6 n.5 (Cal. Ct. App. Oct. 8, 2002); In re Estate of Cole, No. 02-13-00417-CV, 2015 WL 392230, at *4 (Tex. Ct. App. Mar. 5, 2015); In re Estate of McBride, Nos. 49085-1-I, 49146-6-1, 2003 WL 352777, at *1 (Wash. Ct. App. Feb. 18, 2003). Whether a will forces a surviving spouse to make an election is a question of intent. The presumption is that the testator intended to dispose only of his own property. In re Estate of Cole, 2015 WL 392230, at *4. Thus the will must exhibit an intention to dispose of the surviving spouse’s community property. In re Estate of Cole, at * 4–5. 62 Am. Samoa Code Ann. § 40.0104 (requiring “clear and explicit evidence” to VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 111 be entitled to the bequests in the will as well as dower.63 Legal theorist Paul Haskell has commented that “[t]he decedent spouse’s creditors come ahead of the surviving spouse’s forced share; if the decedent spouse is insolvent at his death, the forced share usually avails the surviving spouse nothing.”64 We now turn to the efect of a spouse’s election against the will on the will’s other benefciaries or on property used to augment the estate.65 The difculty lies generally in deciding how to reconcile the terms of the will with the satisfaction of statutory shares in order to craft an “equitable adjustment of the estate.”66 Courts and legislatures have taken diferent approaches to this issue. Some courts hold that each taker under the will or each taker of a portion of the estate must contribute ratably to the elective share of the surviving spouse.67 The rationale for this approach may be that the testamentary framework is thereby more appropriately honored.68 Other courts hold that “diminution is to follow the usual order of abatement . . .” for insolvent estates.69 This scheme prioritizes
rebut the presumption); Morguelan v. Morguelan’s Ex’r, 209 S.W.2d 824, 826 (Ky. 1948). 63 See, e.g., Ky. Rev. Stat. Ann. § 392.080(2) (LexisNexis 2018). 64 Paul G. Haskell, Preface to Wills, Trusts and Administration 150 (2d ed. 1994). 65 See, e.g., Brashier, supra note 2, at 26. 66 Atkinson, supra note 3, at 124. 67 See, e.g., Meadowbrook Farms Apts. v. Carter, 326 N.Y.S.2d 281 (Sup. Ct. 1971); In re Glasenberg’s Estate, 223 N.Y.S.2d 564, 565 (Sur. Ct. 1961); In re Byrnes’ Estate, 267 N.Y.S. 627, 629 (Sur. Ct. 1933); In re Estate of Curley, 160 Misc. 844, 854 (N.Y. Sur. Ct. 1936); Ziegenbein v. Hastings College (In re Estate of Ziegenbein), 519 N.W.2d 5, 8 (Neb. 1994); First Union Nat’l Bank of N.C. v. Melvin (In re Estate of Melvin), 130 S.E.2d 387, 393 (N.C. 1963). Codifcations of this rule include Del. Code Ann. tit. 12, § 908(a) (2018); 755 Ill. Comp. Stat. Ann. 5 / 2-8(d) (LexisNexis 2018); Ky. Rev. Stat. Ann. § 394.382(2) (LexisNexis 2018); Md. Code Ann., Est. & Trusts § 3-208(b)(1) (LexisNexis 2018); Neb. Rev. Stat. Ann. § 30-2319(b) (LexisNexis 2018); N.Y. Est. Powers & Trusts Law § 5-1.1 (LexisNexis 2018); Ohio Rev. Code Ann. § 2107.34(A) (LexisNexis 2018); 33 R.I. Gen. Laws Ann. § 33-6-24 (2018); see also Unif. Prob. Code § 2-209(c)–(d) (amended 2010); Atkinson, supra note 3, at 124; Andrew W. Tanick & Pamela L. Johnson, The New Minnesota Elective Share Statutes, 70 Minn. L. Rev. 241, 256 (2011). 68 In re Estate of Ziegenbein, 519 N.W.2d at 8. 69 R.D. Hursh, Annotation, Who Must Bear Loss Occasioned by Election Against the Will, 36 A.L.R.2d 291 § 2 (1954). Codifcations of this rule include Ala. Code § 43-8-75(b) (LexisNexis 2018); Fla. Stat. Ann. § 733.805(1) (LexisNexis 2018); Iowa Code Ann. § 633.436(1) (West 2018). See also Unif. Prob. 112 Storrow specifc devises, then general devises, residuary devises, and property not disposed of by the will.70 There is also some authority for tailoring the abatement of legacies so that those “whose welfare was of primary concern to the testator [and] are provided for in residuary gifts . . . [not] sufer disproportionate hardship in the case of an election to take against the will.”71 The modern trend is to disturb the testamentary scheme as little as possible, as in elective share regimes that look to nonprobate assets frst and strive to leave charitable gifts undisturbed.72
C. Omitted Spouses and Children Where a will omits a spouse73 or a child and was executed before the marriage or before the testator had the child in question, the omitted individuals may receive a share of the estate.74 The
Code §§ 2-301(b), 2-302(d), 3-902 (amended 2010); Atkinson, supra note 3, at 124; Tanick & Johnson, supra note 67, at 248–49. Some statutes further protect the surviving spouse by making bequests “given in satisfaction of, or instead of, the surviving spouse’s statutory rights in the estate” abate last within a given classifcation. Fla. Stat. Ann. § 733.805(2) (LexisNexis 2018). Other iterations of this idea simply declare that “[p]roperty devised to a surviving spouse who takes under the will” abates last. See, e.g., Iowa Code Ann. § 633.436(1)(e) (West 2018). 70 See, e.g., Idaho Code Ann. §15-3-902(a) (West 2018); Wash. Rev. Code Ann. §§ 11.10.010(1), 11.54.060(1) (LexisNexis 2018). 71 Hursh, supra note 69, § 2, at 291. 72 See, e.g., Fla. Stat. Ann. §§ 732.2075, 733.805 (LexisNexis 2018). 73 Provisions for pretermitted spouses are not as common as provisions for pretermitted children; indeed, some states explicitly reject the principle. See, e.g., Ky. Rev. Stat. Ann. § 394.090 (LexisNexis 2018); N.C. Gen. Stat. § 31-5.3 (2018); Ohio Rev. Code Ann. § 2107.37 (LexisNexis 2018). Note that the common law rule providing for revocation of premarital wills upon marriage exists in statutory form in very few states today. Restatement (Third) of Prop.: Wills & other Donative Transfers § 4.1 cmt. q (Am. Law Inst. 1999). 74 See, e.g., Cal. Prob. Code § 21610 (Deering 2018); N.Y. Est. Powers & Trusts Law § 5-3.2 (LexisNexis 2018). Some statutes include a living child whom the testator believed to be dead within the defnition of an omitted child. See, e.g., Ala. Code § 43-8-91(b) (LexisNexis 2018); Alaska Stat. § 13.12.302(c) (2018); Ariz. Rev. Stat. § 14-2302(E) (LexisNexis 2018); Cal. Prob. Code § 21622 (Deering 2018); Colo. Rev. Stat. § 15-11-302(3) (2018); Conn. Gen. Stat. Ann. § 45a-257b(c) (West 2018); Ga. Code Ann. § 53-4-58 (2018); Ind. Code Ann. § 29-1-3-8(b) (LexisNexis 2018); Mo. ann. Stat. § 474.240(2) (West 2018); 8 N. Mar. I. Code § 2702(b) (2018); Unif. Prob. Code § 2-302(b) (amended 2010). Pretermission statutes rarely include the descendants of the decedent’s children. Exceptions include N.H. Rev. Stat. Ann. § 551:10 (LexisNexis 2018); 33 R.I. Gen. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 113 prevailing theory is that such omissions are unintentional.75 To correct this “testamentary thoughtlessness,”76 pretermitted heir statutes often typically give the omitted family member the share of the estate he would have been entitled to had the decedent died intestate.77 An omitted spouse’s share may be limited to what the spouse would have been entitled to receive out of whatever estate does not pass to the testator’s child or descendant who is not also the child or descendant of the surviving spouse.78 Some states may limit the share of an omitted spouse in other ways79 and disallow a spouse who claims an omitted spouse’s share from also claiming a forced
Laws § 33-6-23 (2018). 75 Brashier, supra note 2, at 101. Indeed, Oklahoma’s provision is specifcally dubbed a “[p]rovision for children unintentionally omitted,” Okla. Stat. Ann. tit. 84, § 132 (West 2018), and includes children who were in existence when the will was executed. See also Ark. Code Ann. § 28-39-407(b) (2018) (entitling existing children not mentioned in the will to an intestate share). 76 Young v. Young, 703 S.W.2d 457, 459 (Ark. 1986). 77 Jesse Dukeminier et al., Wills, Trusts, and Estates 515 (8th ed. 2009) (describing omitted-spouse statutes). See, e.g., Ala. Code §§ 43-8- 90(a), 43-8-91(a) (LexisNexis 2018); Ark. Code Ann. § 28-39-407(a) (2018); Ariz. Rev. Stat. § 14-2301(A) (LexisNexis 2018); Cal. Prob. Code § 21620 (Deering 2018); Colo. Rev. Stat. §§ 15-11-301(1), 15- 11-302(1)(a) (2018); Conn. Gen. Stat. Ann. §§ 45a-257a, 45a-257b(1) (West 2018); Del. Code Ann. tit. 12, §§ 301,321(1)–(2) (2018); Fla. Stat. Ann. §§ 732.301–732.302 (LexisNexis 2018); 755 Ill. Comp. Stat. Ann. 5 / 4-10 (LexisNexis 2018); Idaho Code Ann. § 15-2-301(a) (West 2018); Ind. Code Ann. § 29-1-3-8(a) (LexisNexis 2018); Iowa Code § 633.267(1) (2018); Me. Rev. Stat. Ann. tit. 18-A, § 2-301(a) (2018); Minn. Stat. Ann. § 524.2-301(a) (West 2018); Miss. Code Ann. §§ 91-5-3, 91-5-5 (2018); N.J. Stat. Ann. § 3B:5-15(a) (West 2018); N.C. Gen. Stat. § 31-5.5 (2018); 8 N. Mar. I. Code §§ 2701(a), 2702(a) (2018); Ohio Rev. Code Ann. § 2107.34(A) (LexisNexis 2018); See e.g., 33 R.I. Gen. Laws. § 33-6-23 (2018); Vt. Stat. Ann. tit. 14, § 333 (2018); Wash. Rev. Code Ann. §§ 11.12.091(3), 11.12.095(3) (LexisNexis 2018); W. Va. Code Ann. §§ 41-4- 1, 41-4-2 (LexisNexis 2018); Unif. Prob. Code §§ 2-301(a), 2-302(a)(1) (amended 2010). The protection of pretermitted children can be traced to a Massachusetts statute of 1700 that was imitated by other colonies. Orrin K. McMurray, Liberty of Testation and Some Modern Limitations Thereon, 14 Ill. L. Rev. 96, 118–19 (1919). 78 Alaska Stat. § 13.12.301(a) (2018); Ariz. Rev. Stat. § 14-2301(A) (LexisNexis 2018); Colo. Rev. Stat. § 15-11-301(1) (2018); Haw. Rev. Stat. Ann. § 560:2-301(a) (LexisNexis 2018); Unif. Prob. Code § 2-301(a) (amended 1993). 79 Cal. Prob. Code § 21610(c) (Deering 2018) (limiting the omitted spouse’s share of decedent’s separate property to “one-half the value of the separate property in the estate”). 114 Storrow share.80 The omitted spouse or child receives no pretermitted share if the omission was intentional81 or the testator provided for the omitted person outside of the will.82 Where the decedent already had children when he executed his will, an omitted child will typically share in the gift to the other children.83 Provisions vary. An omitted child may be denied an intestate share if the decedent left nearly all of his estate to his
80 Conn. Gen. Stat. Ann. § 45a-257a(c) (West 2018). The theory here may be grounded in the incompatibility of rejecting the will for the purposes of taking a forced share and accepting the will for the purposes of claiming an omitted spouse’s share. 81 Ala. Code §§ 43-8-90(a), 43-8-91(a)(1) (LexisNexis 2018); Alaska Stat. §§ 13.12.301(a)(1)–(2), 13.12.302(1) (2018); Ariz. Rev. Stat. §§ 14-2301(A)(2), 14-2302(D)(1) (LexisNexis 2018); Cal. Prob. Code §§ 21611(a), 21621(a) (Deering 2018); Colo. Rev. Stat. §§ 15-11-301(1) (b), 15-11-302(2)(a) (2018); Conn. Gen. Stat. Ann. §§ 45a-257a(a)(1), 45a-257b(b)(1) (West 2018); Del. Code Ann. tit. 12, § 301 (West 2018); Fla. Stat. Ann. §§ 732.301(3), 732.302(1) (LexisNexis 2018); 755 Ill. Comp. Stat. Ann. 5 / 4-10 (LexisNexis 2018); Ind. Code Ann. § 29-1- 3-8(a) (LexisNexis 2018); Iowa Code Ann. § 633.267(1) (West 2018); Ky. Rev. Stat. Ann. § 394.382(1)(a) (LexisNexis 2018); Miss. Code Ann. §§ 91-5-3, 91-5-5 (2018); Mo. Ann. Stat. §§ 474.235(1), 474.240(1) (West 2018); N.J. Stat. Ann. § 3B:5-16(b)(1) (West 2018); N.C. Gen. Stat. § 31- 5.5(2) (2018); 8 N. Mar. I. Code §§ 2701(a), 2702(a)(1) (2018); Ohio Rev. Code Ann. § 2107.34(A) (LexisNexis 2017); 33 R.I. Gen. Laws § 33-6-23 (2018); Unif. Prob. Code §§ 2-301(a)(1), 2-302(b)(1) (amended 2010). The test for intentional exclusion sets a high bar. In Estate of Shannon, for example, the court remarked that a will specifcally disinheriting one’s spouse but written before the marriage would be insufcient. 274 Cal. Rptr. 338, 341 (Cal. Ct. App. 1990). 82 Ala. Code §§ 43-8-90(a), 43-8-91(a)(3) (LexisNexis 2018); Alaska Stat. §§ 13.12.301(a)(3), 13.12.202(b)(2) (2018); Ariz. Rev. Stat. §§ 14-2301(A)(2), 14-2302(D)(2) (LexisNexis 2018); Cal. Prob. Code §§ 21611(b), 21621(c) (Deering 2018); Colo. Rev. Stat. §§ 15-11-301(1) (c), 15-11-302(2)(b) (2018); Conn. Gen. Stat. Ann. §§ 45a-257a(a)(2), 45a-257b(b)(2) (West 2018); Fla. Stat. Ann. §§ 732.301(1) (LexisNexis 2018) (mentioning pre- and postnuptial agreements), 732.302 (mentioning advancements); Ky. Rev. Stat. Ann. § 394.382(1)(c) (LexisNexis 2018); Miss. Code Ann. §§ 91-5-3, 91-5-5 (2018); Mo. Ann. Stat. §§ 474.235(1), 474.240(3) (West 2018); N.C. Gen. Stat. § 31-5.5(5) (2018); Unif. Prob. Code §§ 2-301(a)(3), 2-302(b)(2) (amended 2010). Such a “settlement” might take the form of life insurance proceeds. See, e.g., In re Estate of Faber, 114 N.Y.S.2d 119, 121 (App. Div. 1952); In re Estate of Fredenthal, 206 N.Y.S.2d 194, 197 (Sur. Ct. 1960); In re Estate of Magrow, 2001 N.Y. Misc. LEXIS 1423, at *20 (Sur. Ct. May 16, 2001). 83 Alaska Stat. § 13.12.302(B) (2018); Ariz. Rev. Stat. § 14-2302(A)(2) (a)–(b) (LexisNexis 2018); Colo. Rev. Stat. § 15-11-302(1)(b)(I)–(ll) (2018); Unif. Prob. Code 2-302(a)(2)(B) (amended 2010). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 115 surviving spouse84 or the omitted child’s surviving other parent85 or only to the extent provisions favoring the omitted child’s other parent or the surviving spouse are not reduced.86 In some states, if the decedent left nothing to his children living at the time of the will’s execution,87 then the pretermitted child also takes nothing, unless it is shown that the testator was singling his other children out specifcally as undeserving of a gift for whatever reason.88 In Kansas and Maryland, pretermission of a child revokes the entire will but does not arise unless the testator both became married and had the child after the making of the will.89 The Maryland provision further requires that the will contain “a legacy for a child of the testator but make[] no provision for a person who becomes a child of the testator subsequent to the execution of the will.”90 The child’s share in Maryland is the lesser of an intestate share or an equal share of the testamentary gifts to the decedent’s children.91 As with the elective share, satisfying the share of omitted family members requires the will’s benefciaries to contribute. Ratable contribution is the scheme of choice in this context among jurisdictions that have not adopted the Uniform Probate Code.92
84 Ind. Code Ann. § 29-1-3-8(a) (LexisNexis 2018); N.C. Gen. Stat. § 31- 5.5(4) (2018). 85 Ala. Code § 43-8-91(a)(2) (LexisNexis 2018); Alaska Stat. § 13.12.302(1) (2018); Ariz. Rev. Stat. § 14-2302(A)(1) (LexisNexis 2018); Colo. Rev. Stat. § 15-11-302(1)(a) (2018); Cal. Prob. Code § 21621(b) (Deering 2018); Conn. Gen. Stat. Ann. § 45a-257b(a)(1) (West 2018); Fla. Stat. Ann. § 732.302(2) (LexisNexis 2018); Ky. Rev. Stat. Ann. § 394.382(1) (b) (LexisNexis 2018); Mo. Ann. Stat. § 474.240 (West 2018); 8 N. Mar. I. Code § 2702(a)(2) (2018); Unif. Prob. Code § 2-302(a)(1) (amended 2010). 86 Ga. Code Ann. § 53-4-58(1) (2018); Ohio Rev. Code Ann. § 2107.34(A) (LexisNexis 2018). 87 N.C. Gen. Stat. § 31-5.5(3) (2018). 88 Conn. Gen. Stat. Ann. § 45a-257b(a)(2)(E) (West 2018); N.Y. Est. Powers & Trusts Law § 5-3.2(a)(1)(A) (LexisNexis 2018). 89 Kans. Stat. Ann. § 59-610 (West 2018); Md. Code Ann., Est. & Trusts § 4-105(3) (LexisNexis 2018). A Maryland court, however, has ruled that it is sufcient by itself if the child was born after the execution of the will. Karr v. Robinson, 173 A. 584, 586–87 (Md. 1934). 90 Md. Code Ann., Est. & Trusts § 3-301(b)(1) (LexisNexis 2018). 91 Md. Code Ann., Est. & Trusts § 3-302(a)(1)–(2) (LexisNexis 2018). 92 See, e.g., 755 Ill. Comp. Stat. Ann. § 5-4 / 10 (LexisNexis 2018); Md. Code Ann., Est. & Trusts § 3-303 (LexisNexis 2018); Miss. Code Ann. §§ 91-5-3, 91-5-5 (2018); N.Y. Est. Powers & Trusts Law § 5-3.2(c) (LexisNexis 2018); Tex. Est. Code Ann. § 255.055(a) (West 2017); W. Va. Code Ann. §§ 41-4-1, 41-4-2 (LexisNexis 2018). 116 Storrow
Other jurisdictions prefer the abatement method.93 Some hybrids exist. One scheme uses abatement according to classifcation for omitted spouses and children in general but ratable abatement for omitted children who share in the bequest to the decedent’s children living at the time of the execution of the will.94 Another hybrid approach requires abatement of the intestate estate followed by ratable contribution from all testamentary bequests.95 The Uniform Probate Code’s hybrid approach specifes an apportionment scheme for satisfying the elective share but a traditional abatement scheme for satisfying the shares of omitted spouses and children.96 For omitted spouses, Delaware’s provision simply directs each of the devisees to contribute “a just portion.”97 Some contribution schemes shield devises to a child born to the testator before he married the omitted spouse and who is not also a child of the surviving spouse.98 In a similar fashion, a contribution scheme might shield a portion of the estate passing to the surviving spouse if the omitted child is not also a child of the surviving spouse.99
D. Property Set-Asides Certain items of personal property and homestead property may be set aside for a surviving spouse and dependent children.100 These protections are vested in the surviving spouse upon the death of the decedent and, as such, are exempt from and have priority over most other claims.101 They are also available, in most states,
93 See, e.g., Ala. Code §§ 43-8-76, 43-8-90(b), 43-8-91(c) (LexisNexis 2018); Iowa Code Ann. § 633.436(1) (West 2018); Mo. Ann. Stat. §§ 474.235(2), 474.240(4), 473.620 (West 2018). 94 See, e.g., Conn. Gen. Stat. Ann. §§ 45a-257a(b), 45a-257b(a)(2)(D), 45a-257b(d) (West 2018). A similar scheme exists for posthumous children. See, e.g., Ky. Rev. Stat. Ann. § 394.460 (LexisNexis 2018). 95 Cal. Prob. Code §§ 21612(a)(1)–(2), 21623(a)(1)–(2) (Deering 2018); Del. Code Ann. tit. 12, § 302 (2018); Vt. Stat. Ann. tit. 14, § 334 (2018). 96 Compare Unif. Prob. Code §§ 2-301(b), 2-302(d), 3-902 (amended 2010) with Unif. Prob. Code § 2-209(c)–(d) (amended 2008). 97 See, e.g., Del. Code Ann. tit. 12, § 322 (2018). 98 See, e.g., Alaska Stat. § 13.12.301(b) (2018). 99 See, e.g., Tex. Est. Code Ann. § 255.056 (West 2018). 100 See, e.g., D.C. Code § 101.03 (2018); 15 Guam Code Ann. § 2411 (2018); Tex. Est. Code Ann. § 353.051(a) (West 2018); Tex. Prop. Code Ann. § 42.002 (West 2018); Brashier, supra note 2, at 91. According to McMurray, these protections were recognized in the early years of the Union. McMurray, supra note 77, at 120. They appear to be an American invention that has spread to other countries. Atkinson, supra note 3, at 127–28. 101 Iowa Code Ann. §§ 633.211(2), 633.212(2), 633.238(1)(b) (West 2018); VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 117 in addition to property given by will,102 intestate succession,103 or available to the surviving spouse as an elective share.104 As such, they do not constitute an election against devises made in the will,105 but nor are they included in the estate for the purposes of computing the elective share.106 One caveat is that in some states the decedent may, by will, make the amounts chargeable against gifts made in the will or the gifts in the will in lieu of the exercise of these rights.107
Kans. Stat. Ann. § 59-401 (West 2018); Miss. Code Ann. § 91-1-19 (2018); Mo. Ann. Stat. § 474.290(1) (West 2018); Unif. Prob. Code §§ 2-402, 2-403 (amended 2010) (the homestead allowance has priority over all claims; exempt property has priority over all claims but will abate to pay the homestead and family allowances); But see Ariz. Rev. Stat. §§ 14- 2402(B), 14-2403(D) (LexisNexis 2018) (except expenses of administration); Colo. Rev. Stat. § 15-11-403(1)(b) (2018); Tex. Est. Code Ann. §§ 353.102(b), 353.155 (West 2017) (specifying that exempt personal property is nonetheless liable for the payment of “Class 1 claims,” which consist of “funeral expenses and the expenses of the decedent’s last illness . . . .”); Atkinson, supra note 3, at 132 (noting that exempt property may be subject to “last illness, funeral and administration expenses”); Haskell, supra note 64, at 170 (“[T]hese statutory dispositions are exempt from the claims of the decedent’s creditors.”). 102 atkinson, supra note 3, at 131. See, e.g., Ala. Code §§ 43-8-111, 43-8-112 (LexisNexis 2018). 103 See, e.g., Ark. Code Ann. § 28-9-206(b)(2)–(3) (2018). 104 See, e.g., Colo. Rev. Stat. § 15-11-202(3) (2018) (does not include homestead allowance); Ky. Rev. Stat. Ann. § 391.030(4)(c) (LexisNexis 2018); Mo. Ann. Stat. § 474.160 (West 2018); Neb. Rev. Stat. Ann. § 30- 2318(b) (LexisNexis 2018); 33 R.I. Gen. Laws § 33-28-1(b) (2018); Utah Code Ann. § 75-2-402 (LexisNexis 2018); Unif. Prob. Code § 2-402 (amended 2010). But note that in Missouri, the homestead allowance ofsets the forced share and amounts the surviving spouse is entitled to receive in intestacy. Mo. Ann. Stat. §§ 474.160(2), 474.290(1) (West 2018); see also Ohio Rev. Code Ann. § 2106.10(A) (LexisNexis 2018). 105 Fla. Stat. Ann. §§ 732.402(4), 732.403 (LexisNexis 2018); Kans. Stat. Ann. § 59-404 (West 2018); Unif. Prob. Code § 2-403 (amended 2010). 106 Colo. Rev. Stat. § 15-11-204 (2018); Unif. Prob. Code §§ 2-202(c), 2-204 (amended 2010). 107 Atkinson, supra note 3, at 131 (noting the “great weight of authority” requiring an election in accordance with “a clear testamentary stipulation”); Schmidt, Jr., supra note 8, at 143 (“[B]y an express provision in a will, a testator may force the spouse or children to take certain property under the will in lieu of any exempt property.”). See, e.g., Ala. Code §§ 43-8-110(a), 43-8-111, 43-8-112 (LexisNexis 2018); Kans. Stat. Ann. § 59-404 (West 2018); 8 N. Mar. I. Code § 2601 (2018) (“unless the court fnds that the will expressly provides an adequate substitute for the loss of these rights”); Unif. Prob. Code § 2-402 (amended 2010) (“unless otherwise provided”); Unif. Prob. Code § 2-403 (amended 2010) (“unless otherwise provided”). 118 Storrow
Although in general, as Atkinson notes, “the courts are loathe to require an election between the allowances and the ultimate benefts contemplated under the will,”108 in Mississippi, provisions in a will are presumed to bar the surviving spouse from succeeding to exempt property.109 Iowa law allows the surviving spouse to elect a life estate in the homestead in lieu of the real property interests she would receive in intestacy or under a forced share.110 Testamentary provisions benefting her are presumed to be in lieu of any homestead rights.111 The homestead exemption or homestead allowance preserves the decedent’s homestead for the surviving spouse and dependent children and shields it from the claims of the decedent’s creditors.112 The homestead allowance may be a sum of money,113 the right to
108 Atkinson, supra note 3, at 131. 109 Miss. Code Ann. § 91-5-23 (2018). 110 Iowa Code Ann. § 633.240 (West 2018). 111 Iowa Code Ann. § 633.268 (West 2018). 112 George L. Haskins, Estates Arising from the Marital Relationship and Their Characteristics, in 1 The American Law of Property 809, 892 (James A. Casner ed., 1952). 113 Ala. Code § 43-8-110(a) (LexisNexis 2018) ($15,000); Ariz. Rev. Stat. § 14-2402 (LexisNexis 2018) ($18,000); Colo. Rev. Stat. §§ 38-41-201, 38- 41-204 (2018) ($75,000–$105,000 exempt from execution and attachment); D.C. Code. § 9-101.02 (2018) ($15,000); Fla. Stat. Ann. § 732.403 (LexisNexis 2018) ($18,000); Mo. Ann. Stat. § 474.290(1) (West 2018) (not exceeding 50% of the value of the estate up to $15,000); Mont. Code Ann. § 72-2-412 (West 2018) ($20,000); 8 N. Mar. I. Code § 2602 (2018) ($5,000); Va. Code Ann. § 64.2-311(A) (2018) ($20,000); Unif. Prob. Code § 2-402 (amended 2010) ($22,500). According to Paul Haskell, “[t]his means that the homestead allowance is essentially a legislated disposition of a specifc dollar amount not subject to creditors’ claims.” Haskell, supra note 64, at 172. Some states have rejected the allowance approach in favor of the homestead descending “to the surviving spouse immediately on the other spouse’s death.” Tanick & Johnson, supra note 67, at 251 n.49. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 119 occupy the dwelling,114 an amount of land115 or personal property,116 or even an election between a life estate and a one-half interest as tenant in common with the decedent’s descendants.117 By contrast, exempt property, also known as exempt personalty,118 is typically not simply a monetary sum but a set-aside or allowance of, for example, necessities such as household goods, a car, and “money on hand”119 often up to a certain value.120 An amount of money may be made available to substitute for “articles not among the efects.”121 Some statutes give the surviving spouse or children the right to select the
114 Conn. Gen. Stat. Ann. § 45a-321(b) (West 2018); Mass. Ann. Laws ch. 190B, § 2-403(b) (LexisNexis 2018); Ohio Rev. Code Ann. § 2106.15 (LexisNexis 2018) (granting occupation of “the mansion house” for one year); Or. Rev. Stat. Ann. § 114.005(1) (West 2018) (specifying that the surviving spouse and children must also have occupied the homestead); Tenn. Code Ann. § 31-1-104(a) (2018). 115 Kans. Stat. Ann. § 59-401 (West 2018) (“160 acres of land lying without, or of one acre lying within, the limits of an incorporated city . . . .”). Rhode Island has an unusual provision vesting discretion in the court to set aside to the surviving spouse real estate in addition to her intestate share of the decedent’s estate “as may be suitable for her or his situation and support . . . .” 33 R.I. Gen. Laws § 33-10-4 (2018). The provision applies only if the decedent dies without issue. Id. 116 Mo. Ann. Stat. § 474.290(1) (West 2018). 117 Fla. Stat. Ann. § 732.401(1)–(2) (LexisNexis 2018). 118 See, e.g., Ames Tr. & Sav. Bank v. Reichardt, 121 N.W.2d 200, 202 (Iowa 1963). 119 Ala. Code § 43-8-111 (LexisNexis 2018); Ariz. Rev. Stat. § 14-2403(A) (LexisNexis 2018); Conn. Gen. Stat. Ann. § 45a-320(c) (West 2018); Fla. Stat. Ann. § 732.402(2)(a)–(b) (LexisNexis 2018); Kans. Stat. Ann. § 59-403(a) (West 2018); Ky. Rev. Stat. Ann. § 391.030(1)(c) (LexisNexis 2018) (“money on hand”), Ky. Rev. Stat. Ann. § 391.030(4)(a) (LexisNexis 2018); Mo. Ann. Stat. § 474.250 (West 2018) (including such specifcs as “the family bible” and musical instruments); 33 R.I. Gen. Laws § 33-10-1 (2018). Kansas includes a sum of money “of not more than $50,000” within its personal property allowance statute. Kans. Stat. Ann. § 59-403(b) (West 2018). 120 Atkinson, supra note 3, at 129; see also Tanick & Johnson, supra note 67, at 251 n.49. See, e.g., Ariz. Rev. Stat. § 14-2403(A) (LexisNexis 2018) ($7,000); Colo. Rev. Stat. § 15-11-403 (2018) ($30,000); Mass. Ann. Laws ch. 190B, § 2- 403(a) (LexisNexis 2018) ($10,000); N.M. Stat. Ann. § 45-2-403 (LexisNexis 2018) ($15,000); Unif. Prob. Code § 2-403 (amended 2010) ($15,000). Ohio has specifc provisions for setting aside automobiles and watercraft, Ohio Rev. Code Ann. §§ 2106.18(A), 2106.19(A) (LexisNexis 2018) (not to exceed $65,000); Vermont for snowmobiles and all-terrain vehicles, Vt. Stat. Ann. tit. 14, § 313 (2018). 121 See, e.g., Tex. Est. Code Ann. § 353.053(a)–(b) (West 2018) (not to exceed $30,000 in exempt personal property, $45,000 for the homestead). 120 Storrow personal property to be set aside.122 Such a selection may vest a right of contribution in benefciaries specifcally bequeathed such items.123 Some statutes also specifcally provide for a personal property set- aside to the surviving spouse when the estate is insolvent.124 The homestead election and the family allowance (discussed below) may be personal to the surviving spouse,125 but the right to an allowance for exempt property does not necessarily expire on death.126 As is true of the elective share, all of these rights are waivable by agreement.127
E. Monetary Allowance The family allowance, in contrast to the set-asides, is typically a sum of money128 to enable the surviving spouse, the decedent’s minor children, and adult children who depended upon the decedent for support a sum of money for their maintenance during the administration of the estate.129 It might be provided for a specifc period of time after the death of the decedent130 or simply be given
122 See, e.g., Va. Code Ann § 64.2-312(A) (2018). 123 See, e.g., Ky. Rev. Stat. Ann. § 391.030 (4)(d) (LexisNexis 2018). 124 Conn. Gen. Stat. Ann. § 45a-435 (West 2018); Atkinson, supra note 3, at 133. 125 Ariz. Rev. Stat. § 14-2404(D) (LexisNexis 2018); Iowa Code Ann. § 633.242 (West 2018); Easton v. Fessenden, 14 A.2d 508, 510–11 (R.I. 1940). 126 See, e.g, Foiles v. Whittman (In re Estate of Whittman), 233 P.3d 697 (Colo. 2010) (distinguishing between the elective share and the family allowance, on the one hand, and exempt property, on the other). 127 See, e.g., Ariz. Rev. Stat. § 14-2207(A) (LexisNexis 2018); In re Estate of Lutz, 620 N.W.2d 589, 594 (N.D. 2000); Dowling v. Rowan, 621 S.E.2d 397, 400 (Va. 2005); Schmidt, Jr., supra note 8, at 140. 128 Rhode Island has an unusual provision vesting the probate court with discretion, upon application, to set of an allowance of up to $150,000 of the real property of an intestate decedent for the surviving spouse. 33 R.I. Gen. Laws § 33-1-6 (2018). The provision is unusual because it is not an entitlement, it exists only in cases of intestacy, and its features resemble the family allowance more than the property set-asides common in other states. See 33 R.I. Gen. Laws § 33-1-10(3) (2018) (labelling this provision a “discretionary allowance”). Rhode Island also has a separate provision that embodies a typical family allowance. See 33 R.I. Gen. Laws § 33-10-3 (2018). 129 Ala. Code § 43-8-112 (LexisNexis 2018); Cal. Prob. Code § 6540(a) (Deering 2018); Ariz. Rev. Stat. § 14-2404(A) (LexisNexis 2018); Conn. Gen. Stat. Ann. § 45a-320 (West 2018); S.D. Codified Laws § 29A- 2-403 (2018); Mo. Ann. Stat. § 474.260(1) (West 2018); In re Estate of George, 51 V.I. 43, 52 (V.I. Super. Ct. 2009) (referring to the family allowance as “spousal support”); Unif. Prob. Code § 2-404 (amended 2010). 130 Ga. Code Ann. § 53-3-1(c) (2018); 755 Ill. Comp. Stat. Ann. 5 / 15-1(a), 5 / 15-2(a) (LexisNexis 2018); Miss. Code Ann. § 91-7-135 (2018); N.C. Gen. Stat. § 30-15, 30-17 (2018); 33 R.I. Gen. Laws. § 33-10-3 (2018); VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 121 for the family members’ “personal use.”131 Most statutes require the court to make a reasonable or sufcient allowance,132 others state a specifc amount,133 and some allow satisfaction of the allowance with personal property.134 The allowance is personal; it cannot be exercised after the death of the benefciary.135 Like the homestead allowance and personal property set-aside, the family allowance is exempt from and usually has priority over any other claims136 and may be in addition to property given by will, intestate succession, or
Tex. Est. Code Ann. § 353.102(a) (West 2017). 131 Md. Code Ann., Est. & Trusts § 3-201(a)–(b) (LexisNexis 2018) (granting $10,000 to the surviving spouse and $5,000 to each unmarried child under 18); see also N.M. Stat. Ann. § 45-2-402 (LexisNexis 2018) ($30,000). 132 Ariz. Rev. Stat. § 14-2404(A) (LexisNexis 2018); Colo. Rev. Stat. § 15- 11-404(1) (2018); Kan. Stat. Ann. § 59-403(b) (West 2018); Mass. Ann. Laws. ch. 190B, §2-404(a) (LexisNexis 2018); Mo. Ann. Stat. § 474.260(1) (West 2018); N.D. Cent. Code § 30.1-07-02(1) (2017); 8 N. Mar. I. Code § 2603 (2018); Or. Rev. Stat. Ann. §§ 114.015, 114.035 (West 2018); Tex. Est. Code Ann. § 353.102(a) (West 2017); V.I. Code Ann. tit. 15, §§ 353, 356 (2018); Unif. Prob. Code § 2-404 (amended 2010). The court will make the reasonableness determination based on a variety of factors. Tex. Est. Code Ann. § 353.102(b) (West 2017) (specifying “the facts or circumstances” at the time of the determination and “ancticipated to exist during the frst year after the decedent’s death”); In re Estate of Wheat, 955 P.2d 1339, 1341 (Kans. Ct. App. 1998) (judge makes determination based on various factors); Atkinson, supra note 3, at 134 (listing factors that might be employed in setting the amount). 133 Ind. Code Ann. § 29-1-4-1(a) (LexisNexis 2018) ($25,000); N.C. Gen. Stat. §§ 30-15, 30-17 (2018) ($30,000 and $5,000, respectively); Ohio Rev. Code Ann. § 2106.13(A) (LexisNexis 2018) ($40,000). 134 Tex. Est. Code Ann. § 353.106(a) (West 2017). 135 Colo. Rev. Stat. § 15-11-404(2) (2018); Ga. Code Ann. § 53-3-2(a)–(b) (2018); Mo. Ann. Stat. § 474.260(1) (West 2018); N.D. Cent. Code § 30.1-07-02(2) (2017); Unif. Prob. Code § 2-404(b) (amended 2010). But see Mo. Ann. Stat. § 474.300 (West 2018). 136 Ariz. Rev. Stat. § 14-2404(B) (LexisNexis 2018) (except expenses of administration and the homestead allowance); Colo. Rev. Stat. § 15-11- 404(1) (2018) (same); Mo. Ann. Stat. § 474.260(2) (West 2018); Nev. Rev. Stat. Ann. § 146.040 (LexisNexis 2017); Tex. Est. Code Ann. §§ 353.104, 355.102(b) (West 2017) (giving preference to the family allowance against all but “Class 1 claims,” which consist of “funeral expenses and the expenses of the decedent’s last illness . . . .” ); Unif. Prob. Code § 2-404(a) (amended 2010) (the family allowance has priority over all claims except the homestead allowance); In re Estate of Wilhelm, 760 P.2d 718, 724 (Mont. 1988) (ruling family allowance exempt from judgment lien). North Carolina’s version of this provision refers specifcally to “any lien, by judgment or execution, acquired against the property of the deceased spouse . . .” N.C. Gen. Stat. § 30-15 (2018); see also N.C. Gen. Stat. § 30-17 (2018). 122 Storrow available to the surviving spouse as a forced share.137 Nonetheless, a testator may specify that a provision in the will is meant to be in lieu of the allowance, forcing the benefciary to make an election.138 Georgia explicitly bars the allowance where the surviving spouse marries or a minor child attains the age of 18 before petitioning the court for the allowance.139 Illinois and Missouri allow those entitled to the allowance to elect to take some or all of it in the form of chattels belonging to the estate.140 As is true of exempt property in Mississippi, a statute in that state establishes a presumption that testamentary provisions benefting a surviving spouse bar the surviving spouse from taking a family allowance.141
III. The Policies of Family Protection Linking the various family protection mechanisms canvassed in Part II is a fairly clear policy to protect one’s surviving spouse and children when one dies. Protection against disinheritance in the context of intestacy and pretermission is based on the decedent’s either failing to make a will or failing to renew his will so as to include a new spouse or new children. The policy against disinheritance extends to the statutory allowances as well, suggesting that the surviving spouse should not be denied, in the case of the elective share, a minimum share of the decedent’s estate and that, in the case of the other statutory allowances, she and the surviving children should be entitled to certain of the decedent’s real and personal property.
137 Colo. Rev. Stat. § 15-11-404(2) (2018); Ind. Code Ann. § 29-1-4-1(e) (LexisNexis 2018) (“An allowance under this section is not chargeable against the distributive shares of either the surviving spouse or the children.”); Mo. Ann. Stat. § 474.260(1) (West 2018); 33 R.I. Gen. Laws § 33-28-1(b) (2018); Unif. Prob.Code § 2-404(b) (amended 2010); Williams v. Pollard, 72 P.2d 476, 478 (Colo. 1937); Schmidt, Jr., supra note 8, at 140. 138 Ga. Code Ann. § 53-3-3 (2018) (will provision for spouse in lieu of family allowance); 755 Ill. Comp. Stat. Ann. 5 / 15-1(b) (LexisNexis 2018); Ind. Code Ann. § 29-1-3-7 (LexisNexis 2018); Mo. Ann. Stat. § 474.260(1) (West 2018) (“unless otherwise provided”); Unif. Prob. Code § 2-404(b) (amended 2010) (“unless otherwise provided”). North Carolina law specifes that the family allowance will be charged against bequests to the surviving spouse, N.C. Gen. Stat. § 30-15 (2018), but not against those to the surviving children, N.C. Gen. Stat. § 30-17 (2018). 139 Ga. Code Ann. § 53-3-2(a)–(b) (2018). 140 755 Ill. Comp. Stat. Ann. 5 / 15-4(a) (LexisNexis 2018); Mo. Ann. Stat. § 474.260(2) (West 2018). 141 Miss. Code Ann. § 91-5-23 (2018). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 123
Scholars have expressed varying opinions as to why, as Sheldon Plager recognized in 1933, family protection policies frustrate “such other policies as freedom of testamentary disposition, protection of creditors, and alienability of land . . . .”142 When these protections take priority over the interests of creditors, Orrin McMurray has noted that “[t]he evils sufered by society through the pauperization of individuals outweigh the benefts accruing from the strict payment of his debts by a debtor.”143 Legal theorist Ralph Brashier has opined that “[p]robate rules should further the intent of the typical decedent to provide for his family.”144 Succession law achieves this aim and simultaneously aims for efciency by protecting the decedent’s “created” family, defned as his surviving spouse and children.145 Brashier explains that “[a]lthough legislatures recognized both families of the typical decedent, they always concluded that the typical decedent would want, frst and foremost, to protect the family that he created or chose. This explains why the spouse and children (or their descendants) are the initial distributees under virtually all intestacy laws.”146 The most important ramifcation of protecting decedents’ created families, according to Brashier, is that “probate laws ultimately should promote and protect the state. Fortuitously, recognizing members of the decedent’s created family as heirs has a stabilizing efect on family life and society as a whole, as those family members are also the people most likely to be dependent upon him.”147 More recently, Hendrik Hartog has theorized that behind family protection policies in succession law lies “an understanding that situates parents’ responsibilities for their children and the overarching signifcance of the marriage bond at the center of what the family ‘means’. . . .”148 Harmonizing these theories, we can discern that the concerns thought primarily to drive the policy that one should not sufer disinheritance upon the death of a parent or spouse are threefold: that the decedent intended to bestow his bounty upon his surviving spouse and children, that the surviving spouse should be
142 Sheldon J. Plager, The Spouse’s Nonbarrable Share: A Solution in Search of a Problem, 33 U. Chi. L. Rev. 681, 681 (1966). 143 McMurray, supra note 77, at 121; see also Atkinson, supra note 3, at 127. 144 Brashier, supra note 2, at 6. 145 Id. at 5. 146 Id. 147 Id. at 7. 148 Hendrik Hartog, Someday All This Will Be Yours: A History of Inheritance and Old Age 50 (2012). 124 Storrow rewarded for her contributions to the marital economy, and that the necessities of a surviving spouse and children should not be placed in jeopardy by one’s death. This section explores whether these concerns convincingly explain the devices that legislatures have created to protect the family in the area of succession law.
A. Allowances At their root, the homestead, personal property and family allowances are allowances meant to provide support during a stressful period when family members may need access to funds in the estate in order to support themselves and maintain their home.149 By extension, statutory allowances aim to protect the state “from the burden of indigent families.”150 In comparison to the intestate, elective, or pretermitted-heir shares, statutory allowances are meager.151 It stands to reason, then, that the decedent is typically powerless, barring consumption of the property, to place his assets beyond the reach of these allowances or for his creditors to attach them.152 Consider In re Estate of Wagley.153 In this dispute involving a small estate, most of which was contained in a joint bank account for the beneft of the decedent’s daughter, the surviving spouse applied for a personal property set-aside.154 The inventory of probate assets amounted to less than $5,000, an amount insufcient to satisfy debts, administrative expenses, and statutory allowances.155 The probate court denied satisfaction of her exempt property claim from the joint bank account.156 The Supreme
149 See In re Wallace’s Estate, 246 P.2d 894, 898 (Colo. 1952); French v. French, 533 P.2d 1357, 1360 (Nev. 1975) (in resolving competing petitions for exempt property of widow and minor children from prior marriage, court determined that widow had the greater need). 150 Eugene F. Scoles et al., Problems and Materials on Decedents’ Estates and Trusts 69 (7th ed. 2006). 151 Compare N.Y. Est. Powers & Trusts Law § 5-1.1-A(a)(2) (LexisNexis 2018) (the greater of $50,000 or one-third of the net estate) with N.Y. Est. Powers & Trusts Law § 5-3.1(a)(6) (LexisNexis 2018) (family allowance of $25,000 to be reduced by amounts in excess of personal property allowances). 152 But see Mont. Code Ann. §§ 72-2-412, 72-2-413, 72-2-414 (West 2017) (“unless otherwise provided” by will); Utah Code Ann. §§ 75-2-402, 75- 2-403, 75-2-404 (LexisNexis 2018) (making allowances chargeable against amounts received via will, intestate succession, the elective share, and non- probate transfers). 153 In re Estate of Wagley, 760 P.2d 316 (Utah 1988). 154 Id. at 317. 155 Id. at 318. The homestead exemption was not claimed. Id. 156 Id. at 317. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 125
Court of Utah reversed in part, reasoning that statutory allowances are meant to provide “essential protection” to a surviving spouse that can be provided from non-probate assets in cases where the estate is insolvent.157 Another case in this vein is In re Estate of Lawson.158 In this case, married couple James and Karen Lawson held certain assets with survivorship provisions.159 When James died, Karen succeeded to enough of these assets to enable her to purchase a new home.160 When she moved there from the marital home, Karen took with her certain items of personal property. James’s niece, having been appointed personal representative of the estate, moved to ofset the sums due Karen as statutory allowances by the value of the personal property.161 Karen was granted all three allowances free from the estate’s claims, the Supreme Court of Montana noting that
[t]he purpose of the allowances is to ensure that a surviving spouse is not left penniless and abandoned by the death of a spouse. The allowances are not designed to support the family until they share in the estate, but irrespective of whether they do or do not share.162
Wagley, Lawson, and other authorities send the message that allowances are necessary to prevent the destitution of the surviving spouse and children163 or, as one court colorfully put it, “so that
157 Id. at 318 (internal quotation marks omitted). 158 In re Estate of Lawson, 721 P.2d 760 (Mont. 1986). 159 Id. at 761. 160 Id. 161 Id. 162 Id. at 762. 163 Wagley, 760 P.2d at 318; Lawson, 721 P.2d at 762. See also 33 R.I. Gen. Laws §§ 33-10-3 (2018) (describing the allowance as “for the support of [the decedent’s] family”), 33-10-4 (2018) (describing the real property set-aside as “for her or his situation and support and in accordance with the circumstances of the estate”); In re Bradley’s Estate, 106 P.2d 1063, 1065 (Colo. 1940) (describing the policy as “providing a measure of support to a widow or minor children during the process of administration . . . .”); Easton v. Fessenden, 14 A.2d 508, 511 (R.I. 1940) (describing the personal property set-aside as “based on considerations of public policy directed toward the preservation of the home and family of a decedent by assuring his widow and minor children immediate assistance . . .”); In re Estate of Woodward, 40 Cal. Rptr. 781, 783 (Ct. App. 1964) (describing the family allowance as “an extension of the decedent’s obligation of support”); In re Wheat, 955 P.2d 1339, 1341 (Kan. Ct. App. 1998) 126 Storrow she would not be stripped of the means with which to carry on.”164 Although outwardly plausible, this rationale breaks down a bit at the margins. In particular, some families might not need $50,000 to weather the probate period. Similarly, set-asides and allowances that beneft adult children who are self-supporting do not appear to be aimed at preventing pauperization. Finally, the separate assets of the surviving spouse may not afect her entitlement to sums she appears not to need,165 as we see in Lawson. The conclusion of the Montana Supreme Court that the statutory allowances are, simply put, so essential that they should not be ofset by other assets received by the surviving spouse166 does not hew particularly closely to a support rationale. Another important policy that might simultaneously be in play here, as the Utah Supreme Court implied, is judicial economy.167 “The prompt settlement of estates,”168 as suggestive as it may be of concern for a decedent’s close family, also ensures that judicial resources are preserved and the resolution of issues accelerated through the circumscription of judicial tasks. Providing support expeditiously may come at the cost of providing support when it is not entirely critical, but these rare instances actually serve the larger aim of providing support immediately than would a system requiring
(describing the policy as helping the family “get through a difcult period of readjustment” and not leaving the family “entirely destitute”); J. Rodney Johnson, Wills, Trusts, and Estates, Va. L. Rev. 521, 522 (1982) (describing the “basic aim” of the family allowance as making “necessary funds available to the family as soon as reasonably possible”); Carolyn S. Bratt, Family Protection under Kentucky’s Inheritance Laws: Is the Family Really Protected?, 76 Ky. L.J. 387, 390 (1988). 164 Schmidt, Jr. supra note 8, at 139 (quoting Wallace v. First Nat’l Bank, 246 P.2d 894, 901 (Colo. 1952)). 165 A surviving spouse’s separate assets could be a factor used by the court to decide what is a “reasonable” family allowance. See, e.g., In re Wheat, 955 P.2d 1339, 1341 (Kans. Ct. App. 1998) (“A court may use its discretion and take into consideration various factors, such as the fnancial condition of the decedent’s spouse and minor children, when determining the amount of allowance to award.”); Unif. Prob. Code § 2-404 (amended 2010) (“In determining the amount of the family allowance, account should be taken of both the previous standard of living and the nature of other resources available to the family to meet current living expenses . . . .”). 166 Lawson, 721 P.2d at 762. 167 Unif. Prob. Code art. II, pt. 2, gen. cmt. at 143 (2013) (amended 2010) (noting that “ease of administration and predictability of result are prized features of the probate system”). 168 Unif. Prob. Code § 3-101 (amended 2010). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 127 the exercise of judicial discretion after extensive fact-fnding.
B. Intestacy and Pretermitted Heirs We now turn to the purposes of intestacy and pretermission statutes. As the default estate plan, the contours of intestacy provisions have most often been described as refecting the wishes of the average decedent who, by and large, desires to beneft those with whom he has signifcant emotional ties or who are economically dependent upon him.169 The prevailing wisdom counsels that in matters of intestacy, testamentary freedom simply needs a bit of assistance from the law when decedents fail to provide for their close family members. As such, the most apparent purpose of intestacy rules is to carry out what a testator would have included in a will. From this perspective, whatever protective function intestacy statutes are meant to serve seems to protect the decedent, not the benefciary. The same theory justifes pretermission statutes that protect heirs apparent against unintentional disinheritance. For example, an Oklahoma court has remarked that the “pretermitted heir statute . . . is not a limitation on a testator’s power to dispose of his property. [It] is an assurance that a child is not unintentionally omitted from a will.”170 But the typical statute does not merely carve out a share of the estate for the omitted child. The typical pretermitted child statute specifes that if the testator had other children at the time of the execution of the will, the omitted child’s share will be subsumed within theirs, even if the will grants them nothing.171 The idea here is that the reasonable testator would have
169 Efrain Gonzalez Tejera, Mortis Causa Wealth Transfer and the Protection of the Family: The Spanish-Puerto Rican Experience, 60 Tul. L. Rev. 1231, 1244 (1986) (arguing against including in Puerto Rico’s intestacy code benefciaries who lack “true emotional ties” with and economic dependence upon decedents); See generally, Adam J. Hirsch, Cognitive Jurisprudence, 76 S. Cal. L. Rev. 599, 621 (2003); Susan N. Gary, Adapting Intestacy Laws to Changing Families, 18 L. & Ineq. 1, 12 (2000); but see Lee-Ford Tritt, Technical Correction or Tectonic Shift: Competing Default Rules Theories under the New Uniform Probate Code, Ala. L. Rev. 273, 283 (2010) (noting that the stated policy of the Uniform Probate Code’s intestacy provisions is “‘to provide suitable rules for the person of modest means who relies on the estate plan provided by law’”) (quoting Unif. Prob. Code art. II, pt. 1, cmt. (amended 2008), 8 U.L.A. 79 (1998)). 170 In re Estate of Jackson, 194 P.3d 1269, 1274 (Okla. 2008); see also In re Estate of Sprenkle-Hill, 703 N.W.2d 191, 195 (Mich. 2005) (expounding the theory that the reasonable testator intended to provide for the pretermitted spouse in the will but neglected to do so). 171 See, e.g., N.Y. Est. Powers & Trusts Law § 5-3.2 (LexisNexis 2018). 128 Storrow wanted his children to be treated equally. This would counsel that the pretermitted child not receive a share that either eclipses or is substantially less than the testator has already set aside for his other children. Ostensibly, then, both intestacy and pretermission provisions have more to do with carrying out an estate plan the decedent would have preferred than with ensuring that surviving members of the decedent’s nuclear family receive support. Consider the case study example described at the beginning of this article. There, May’s will provided that her husband Saul and sister Nance share her estate, but she adopted Cai after she executed it. The solution to this problem is relatively straightforward under current law. The court would frst calculate what would have been Cai’s intestate share had May died without a will. Calculating that share will require us to acknowledge who would have shared the estate with Cai in that event. If New York intestacy law applies, Saul, as May’s surviving spouse, would take $50,000 plus half of the remainder of the estate; in intestacy, Saul would thus be entitled to $275,000.172 In intestacy, surviving children take what is left, in this case $225,000. Thus Cai’s pretermitted share is $225,000, which will reduce the estate to $275,000. That amount is now made subject to the terms of May’s will, which bestows half of that amount upon Saul and half upon Nance. Benefting Cai may be precisely what May would have preferred to the will she did create; nonetheless, the notion that intestacy and pretermission provisions protect benefciaries the decedent never explicitly named as the objects of her bounty is certainly not missing from these provisions.173 After all, reasonable testators may wish to beneft their immediate families precisely because they do need support174 or have earned the testator’s largesse. Breadwinners tend to die before homemakers, children may be minors, and most adult children have earned a share of their
172 $500,000 – 50,000 = $450,000. $450,000/2 = $225,000. $50,000 + 225,000 = $275,000. 173 Woodward v. Comm’r of Social Security, 760 N.E.2d 257, 266 (Mass. 2002) (noting “the protection of children who are alive or conceived before the intestate parent’s death”). 174 Susan N. Gary, The Probate Defnition of Family: A Proposal for Guided Discretion in Intestacy, 45 U. Mich. J.L. Reform 787, 790 n.14 (2012); Gary, supra note 169, at 11. Frederick R. Schneider, Recommendations for Improving Kentucky’s Inheritance Laws, 22 N. Ky. L. Rev. 317, 318 (1995) (arguing for reform that would balance the desires of the reasonable testator with “adequate protection to the fnancially dependent surviving spouse and family.”). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 129 parent’s bounty through their loyalty.175 Thus, when we speculate on how a reasonable testator would exercise his testamentary prerogatives, we understand that, in most cases, that exercise will refect concerns about the need to provide support and recognize deservedness, with the rare departures from this—demonstrations of eccentricity and nonconformity—refecting little of the norms typically followed either in testamentary planning or refected in intestacy provisions. What explains, then, intestacy provisions singling out “ancestral” property for special treatment? Under the common law, real property “returned to the branch of the family from which the decedent inherited it,”176 to a descendant of “the blood of the frst purchaser.”177 Some intestacy provisions still embody a modifed version of this rule.178 The policy behind ancestral property rules appears to have little to do with the wishes of most reasonable testators; indeed, the rules have the efect of guaranteeing that the decedent’s real property will not descend to those who are the natural objects of his bounty. The most common provision bypasses the surviving spouse in favor of ancestors and collateral kin.179 Another ancestral property provision that cuts against the intent of the average
175 American intestacy provisions are less explicit about providing support or desert than, say, provisions in Chinese intestacy law guaranteeing those who provided support to a decedent before his death a share of any of his estate distributed in intestacy. Thomas E. Simmons, A Chinese Inheritance, 30 Quinnipiac Prob. L.J. 124, 140 (2017). Simmons recognizes that the policy behind such provisions “is to encourage and reward adult children who support their parents, fnancially or emotionally.” Id. at 147. 176 Restatement (Third) of Prop.: Wills & other Donative Transfers § 2.4 cmt d (Am. Law. Inst. 1999). 177 1 James B. McLaughlin, Jr., & Richard T. Bowser, Wiggins Wills & Administration of Estates in North Carolina § 16:4 (4th ed. 2016). The blood of the frst purchaser refers to “the person who frst brought the land into the family and who thus acquired it by some means other than by descent or by escheat.” Sheila Solomon, Michigan Ancestral Property Doctrine, 3 Wayne L. Rev. 51, 52 (1956). 178 Restatement (Third) of Prop.: Wills & Other Donative Transfers § 2.4 cmt. d (Am. Law Inst. 1999); Statutory Treatment of Ancestral Estate and the Half Blood in Instestate Succession, 42 Yale L.J. 101, 103 (1932). See, e.g., Ky. Rev. Stat. Ann. § 391.020 (LexisNexis 2018). North Carolina did not abolish the distinction between ancestral and nonancestral property until 2012. See N.C. Gen. Stat. § 29-3(2) (2018). 179 See, e.g., In re Smith’s Estate, 63 P. 729 (Cal. 1901) (intestate’s real property inherited from her father descended not to surviving spouse but to decedent’s sisters). 130 Storrow reasonable testator applies to the inheritance of real property by a minor child who then later dies while still a minor and unmarried.180 Shades of this provision appear in West Virginia’s pretermitted child law. Under that law, the property bestowed upon a pretermitted child nonetheless goes to the testamentary benefciaries the testator originally intended if that child dies unmarried and under the age of 18.181 Under either regime, the real estate or personal property is distributed at that later time to the decedent’s other children and their representatives182 or to those the testator originally intended,183 as if the minor child had died during the decedent’s lifetime.184 The policy behind ancestral property provisions is primarily to keep real estate in the hands of consanguineous kin of the whole blood;185 indeed, half-blood relations and adopted children were excluded from the ranks of heirs of ancestral property.186 Concerns about testamentary intent and the need for support have no role in the mechanics of ancestral property statutes. Such provisions sound quite archaic to our ears today and it is true that their infuence is currently minimal,187 but an acknowledgment of them reveals a dimension of intestacy law that has nearly been forgotten. The reason for perpetuating such provisions, albeit partially, in pretermitted child provisions like West Virginia’s is unclear, but the preservation of testamentary intent is surely part of the story. After all, minors cannot own property or write enforceable wills and so arguably have no testamentary intent independent of the testator’s about which the law should be concerned.
180 Such a provision remained in efect in Oklahoma until 1985. See Okla. Stat. Ann. tit. 84, § 213(A) (West 2018). 181 See, e.g., W. Va. Code Ann. §§ 41-4-1, 41-4-2 (LexisNexis 2018). 182 See Okla. Stat. Ann. tit. 84, § 213(A) (West 2018). 183 See, e.g., W. Va. Code Ann. §§ 41-4-1, 41-4-2 (LexisNexis 2018). 184 4 Herbert Thorndike Tiffany & Basil Jones, The law of Real Property § 1125 (3d ed. 1975). 185 Solomon, supra note 177, at 57. (Solomon further explains that the objective was to “maintain a landed aristocracy and to concentrate the ownership of real property . . . .”). 186 26B C.J.S. Descent and Distribution §§ 17, 46 (2018); Solomon, supra note 177, at 52–53. 187 Restatement (Third) of Prop.: Wills and Other Donative Transfers § 2.4 cmt. d (Am. Law Inst. 2003) (commenting that “any benefts of the rule are outweighed by the administrative costs, which include tracing and accounting for accretions”). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 131
C. The Elective Share The elective share replaces and seeks to remedy the inadequacies of the common law rights of dower and curtesy.188 Dower was meant to save some of a man’s property for his wife; nonetheless, widows could be left destitute due to the options their husbands could use to undermine the protection of dower.189 But the elective share had its own shortcomings, the primary one being the ability of a predeceasing spouse to disinherit the surviving spouse by transferring property out of his estate prior to his death, and there being no limit on inter vivos transfers.190 This had a disproportionate impact on women, who tended to outlive their spouses.191 The objective of the elective share, like the statutory allowances, is ostensibly to protect the surviving spouse by restraining the dead hand of the decedent spouse.192 One court has described the policy behind the elective share statute as a limitation “on a married person’s power to dispose of his or her property.”193 The
188 Haskins, supra note 112; Bernard S. Mark, Questions and Answers about the Elective Share, 93 N.J. Law. 37, 37 (1980). Common law dower and curtesy have been abolished in almost all states. Jerome v. Prob. Court of Barrington, 922 A.2d 119, 122 (R.I. 2007). Some states have statutes that explicitly abolish dower and/or curtesy. See, e.g., Ala. Code § 43-8-57 (LexisNexis 2018); Fla. Stat. Ann. § 732.111 (LexisNexis 2018); 755 Ill. Comp. Stat. Ann. 5 / 2-9 (LexisNexis 2018); Md. Code Ann., Est. & Trusts § 3-202 (LexisNexis 2018); Mont. Code Ann. § 72-2-122 (West 2017); N.C. Gen. Stat § 29-4 (2018); Okla. Stat. Ann. tit. 84, § 214 (West 2018); 33 R.I. Gen. Laws § 33-25-1 (2018); Or. Rev. Stat. Ann. § 112.685 (West 2017); Tenn. Code Ann. § 31-2-102 (2018); Va. Code Ann. § 64.2-308.2 (2018); Vt. Stat. Ann. tit. 14, § 302 (2018); Wash. Rev. Code Ann. § 11.04.060 (LexisNexis 2018); W. Va. Code Ann. § 43-1-1 (LexisNexis 2018); Wyo. Stat. Ann. § 2-4-101(b) (2018); see also Unif. Prob. Code § 2-112 (amended 2010); Atkinson, supra note 3, at 62. An unusual forced share provision is Ohio’s, which allows the surviving spouse to elect against the will and retain dower rights. Ohio Rev. Code Ann. § 2106.24 (LexisNexis 2018). 189 Thomas L. Shaffer et al., The Planning and Drafting of Wills and Trusts 85–86 (5th ed. 2007) (mentioning conveyances before marriage and conveyances in lieu of dower). 190 Atkinson, supra note 3, at 113. 191 See Adam J. Hirsch, Freedom of Testation / Freedom of Contract, 95 Minn. L. Rev. 2180, 2231 (2011); see also Lawrence W. Waggoner et al., Family Property Law: Cases and Materials on Wills, Trusts, and Future Interests 598 (3d ed. 2002) (“Because women’s average life expectancy is seven years longer than men’s, the surviving spouse is more likely to be a woman.”). 192 Lewis M. Simes, Protecting the Surviving Spouse by Restraints on the Dead Hand, 26 U. Cin. L. Rev. 1, 4 (1957). 193 In re Estate of Jackson, 194 P.3d 1269, 1274 (Okla. 2008). 132 Storrow policy is stated not as promoting a positive virtue, but as prohibiting a harmful act. It is contained within provisions speaking specifcally to testators’ capacity and powers. Although the election belongs to the surviving spouse,194 its function is to prohibit the decedent from devising “away from the other so much of the estate of the testator that the other spouse would receive less in value than an undivided one-half (1/2) interest in the property acquired by the joint industry of the husband and wife during coverture.”195 Another formulation is to guarantee the surviving spouse at least an intestate share of the estate.196 Thus, at their root, elective share statutes strive to protect the spouse against disinheritance.197 Elective share statutes have not been entirely equal to the task, as cases illustrating the many methods of evading the widow’s share attest.198 Testators have been known to transfer assets into nonprobate vehicles within short periods of their death, thereby in essence defeating the surviving spouse’s elective share.199 This placed a termination of marriage by death in sharp contrast with divorce, where such maneuvers are impotent to defeat a spouse’s right to
194 Okla. Stat. Ann. tit. 84, § 44(B)(2) (West 2018). 195 Id. at § 44(B)(1). 196 In re Estate of Davis, 274 A.2d 491, 494 (Vt. 1971). 197 In re Estate of Karnen, 607 N.W.2d 32, 36 (S.D. 2000). These policies have little relevance in community property states where ownership of property is settled by diferent rules that render an elective share superfuous. Dukeminier, supra note 77, at 511; Thomas L. Shaffer & Carol Ann Mooney, The Planning and Drafting of Wills and Trusts 76 (3d ed. 1991) (“Community property theory disposes of questions about a surviving spouse’s share of a property-owner’s wealth by making the spouses equal owners from the time property is acquired.”). 198 W.D. MacDonald, Fraud on the Widow’s Share 67–258 (1960); Shaffer & Mooney, supra note 197, at 77–8 (revealing intent, reality and control to be the three “schools of thought” in such cases); Abraham M. Mora & Sanford J. Schlesinger, Reforming Florida’s Elective Share Law: Is the Cure Worse Than the Disease?, 72 Fla. B.J. 44 (1988); Staples v. King, 433 A.2d 407, 408 (Me. 1981); Siefert v. Southern Nat’l Bank of South Carolina, 409 S.E.2d 337, 338 (S.C. 1991). 199 Mora & Schlesinger, supra note 198 (citing, e.g., Friedberg v. Sunbank/Miami, N.A., 648 So. 2d 204 (Fla. Dist. Ct. App. 1995)); William D. McEachern, The Elective Share, 56 Fla. B.J. 648, 648 (1982); Bernard S. Mark, Questions and Answers about the Elective Share, N.J. Law. 37, 37 (1980); Tanick & Johnson, Probate Reform: The New Minnesota Elective Share Statutes, 70 Minn. L. Rev. 241, 244, 246 (1985) (distinguishing between inter vivos transfers of property over which the decedent retained control and of property to which he relinquished all control); Helene S. Shapo, The Widow’s Mite Gets Smaller: Defciencies in Illinois Elective Share Law, 24 S. Ill. U. L.J. 95, 98 (1999). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 133 equitable distribution of the marital property.200 Policymakers and commentators have queried why the same prohibition should not apply to estates.201 Why, for example, should a surviving spouse receive permanent support when the marriage ends due to divorce rather than death?202 To address the disparity between the ramifcations of marital dissolution during life and marital dissolution because of death, legislators in some states have reformed elective share law by expanding its scope to what is now known as the “augmented estate.”203 Courts, too, have issued policy-based decisions enlarging the amount of the estate for elective-share purposes where the estate subject to the elective share was legislatively limited to the probate estate.204 Not all commentators believe these decisions are defensible. Martin Begleiter, for example, believes they are products of judicial activism.205 The augmentation of the decedent’s estate is accomplished by including within the property subject to the elective share transfers the testator made during the marriage to a third party “without the spouse’s written consent,” and for which the decedent did not receive “adequate compensation.”206 Also included are gifts made within one year of death that exceed $30,000 and transfers to nonprobate vehicles or property held in nonprobate vehicles over which the decedent retained an interest or control.207 Finally, the augmented
200 Mora & Schlesinger, supra note 198, at 44. 201 See, e.g., Angela M. Vallario, The Elective Share Has No Friends: Creditors Trump Spouse in Battle over the Revocable Trust, 45 Cap. U. L. Rev. 333, 338 (2017). One suggestion for reform has been instead to set up a system of maintenance payments, the amount of which would be established by reference to a set of factors, much the way spousal maintenance is set for divorcing spouses. Plager, supra note 142, at 682, 715 (remarking on the need for “individuation”). 202 See Laura Hamister, ‘Til Death or Irreconcilable Diferences Do Us Part: Comparison of Support Obligations at Death and Divorce, 22 J. Contemp. Legal Issues 29, 46 (2014–15). 203 Brashier, supra note 2, at 18; Dukeminier, supra note 77, at 511. An early example, presuming certain conveyances to be fraud, is Mo. Ann. Stat. § 474.150 (West 2018). 204 See, e.g., Sullivan v. Burkin, 460 N.E.2d 572, 576–77 (Mass. 1984). 205 See, e.g., Martin D. Begleiter, Grim Fairy Tales: Studies of Wicked Stepmothers, Poisoned Apples, and the Elective Share, 78 Alb. L. Rev. 521, 537–38 (2014–15) (arguing that expanding the defnition of the estate subject to the elective share beyond what is specifed in legislation is an impermissible exercise of judicial power). 206 Tanick & Johnson, supra note 67, at 249. 207 Id., supra note 67, at 252–53; see, e.g., In re Vitelli, 231 N.Y.L.J. 31 (N.Y. Sur. Ct. 2004) (employee’s death beneft). 134 Storrow estate includes property the surviving spouse “derived” from the decedent.208 Although “[t]he augmented estate specifcally does not include funeral and administrative expenses, the homestead, family allowances and exemptions, liens, mortgages, and enforceable claims,”209 the elective share is reduced by what the spouse receives under the will, including the present value of a life estate in trust,210 and is thus referred to in some statutes as the “net elective share”211 or a limited election.212 In this sense, the theory of the elective share is not to reject the will but to supplement bequests in the will.213 The elective share can further be shaped to refect equitable distribution law by calibrating the amount of the share to the length of the marriage, with a longer marriage entitling the surviving spouse to a larger elective share.214 This is true in Kansas and under the Uniform Probate Code, but their provisions nonetheless specify that the spouse is entitled to at least $50,000 and $75,000, respectively.215 The efort to make the elective share track the law of equitable distribution upon divorce is grounded in the view that equitable distribution treats marriage as an economic partnership and that the elective share should do likewise.216 Legislatures and the judiciary have been quite plain in theorizing that equitable distribution should be a recognition of the marital economy, leaving questions of support to be dealt with under alimony laws. Within equitable distribution, a spouse leaves the marriage with whatever she came to it with.217 Her separate property is not considered part of the marital economy unless its value has been enhanced through
208 In one case, this included assets received by the surviving spouse from the decedent in a divorce; they later remarried. In re Estate of Zimmerman, 633 N.W.2d 594, 600–01 (N.D. 2001). 209 Tanick & Johnson, supra note 67, at 251 n.49. 210 See, e.g., In re Estate of Karnen, 607 N.W.2d 32, 36–38 (S.D. 2000). 211 See, e.g., N.Y. Est. Powers & Trusts Law § 5-1.1A(a)(4) (LexisNexis 2018). 212 In re Rosenzweig’s Will, 224 N.E.2d 705, 709 (N.Y. 1966). 213 Estate of Fischer, 545 A.2d 1266, 1271–72 (Me. 1988). 214 See, e.g., Colo. Rev. Stat. § 15-11-202(1) (2018); N.C. Gen. Stat. § 30-3.1 (2018). 215 Kans. Stat. Ann. § 59-6a202(b) (West 2018); Unif. Prob. Code §§ 2-202(b), 2-203(b) alt. A (amended 2010). 216 Waggoner et al., supra note 191, at 592(referring to the “pressure on separate-property states” to reform their elective share law to conform with the partnership theory of equitable distribution). 217 N.Y. Dom. Rel. Law § 236-B(5)(b) (LexisNexis 2018). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 135 the toil of the other spouse.218 The marital property is distributed equitably.219 The court uses a list of factors to accord each party a fair share of the marital assets.220 In most cases, fault in causing the breakdown of the marriage is irrelevant.221 The only bad acts that are relevant to equitable distribution are acts that have harmed the marital economy or are particularly egregious.222 The elective share, though, does not resemble this scheme. First, it makes no distinction between marital and separate property.223 It also does not take into account the needs of the surviving spouse. If the elective share were meant to foster fairness in the distribution of marital assets it would more closely resemble community property principles where the law prevents the decedent’s will from controlling any portion of the surviving spouse’s 50% share of the community property and at the same time leaves the decedent with full control over his share of the community property and his own separate property. For this reason, the elective share is not recognized in community property states. The Uniform Probate Code has famously fashioned an elective share whose express purpose is to reify an economic partnership of marriage,224 albeit without the lengthy list of factors that courts apply with signifcant discretion when a marriage ends in divorce.225 The overriding factor is the duration of the marriage, which has the efect of decreasing or eliminating the elective share where a marriage of brief duration disabled the spouse from contributing to the other’s wealth.226 At the margins, even a fault analysis enters in here: as mentioned above, fault is irrelevant to equitable distribution unless it is economic or egregious. It thus stands to reason that the Uniform Probate Code deprives an individual who slays her spouse
218 Price v. Price, 503 N.E.2d 684, 685 (N.Y. 1986). 219 N.Y. Dom. Rel. Law § 236-B(5)(c) (LexisNexis 2018). 220 Id. § 236-B(5)(d). 221 Smith v. Smith, 331 S.E.2d 682, 683 (N.C. 1985). 222 Smith, 331 S.E.2d at 683; Howard S. v. Lillian S., 928 N.E.2d 399, 401 (N.Y. 2010). 223 Haskell, supra note 64, at 153 (“The forced share, however, is not limited to the earnings accumulated during the marriage. It is also available to the working husband who survives the homemaking wife whose estate consists of inherited wealth from her parents. The forced share is also available to the surviving spouse of the second marriage late in life during which there was no homemaking or wealth accumulation.”). 224 Unif. Prob. Code art. II, pt. 2 cmt. at 140 (amended 2010). 225 See, e.g., Smith v. Smith, 444 S.E.2d 420, 422 (N.C. 1985) (listing factors). 226 Unif. Prob. Code art. II, pt. 2 gen. cmt. at 140, 142–43 (amended 2010). 136 Storrow not only of her intestate share or her share under the will but of her elective share as well.227 But oddly, economic fault appears not to be a relevant consideration under the Uniform Probate Code’s version of the elective share, undermining the sense that recognizing marriage as an economic partnership is the Code’s true rationale. The Uniform Probate Code’s elective share also embodies a support feature in the form of a “hardship” provision recognizing that even those who may not be entitled to an elective share may need “a special supplemental elective-share amount” to be capable of supporting themselves.228 The provision most resembles alimony, more commonly known today as spousal maintenance. Spousal maintenance at divorce is established according to a list of factors that enables the court to calculate the non-monied spouse’s need for support.229 Fault in breaking up the marriage is a relevant consideration, the theory being that the monied spouse should not have to support a former spouse outside of marriage if that spouse is at fault for the breakdown of the marriage. A surviving spouse, by contrast, receives an elective share whether or not she has economic needs exacerbated by the decedent’s death. Likewise, her fault, short of slaying her spouse, does not deprive her of an elective share. The drafters of the Uniform Probate Code admit that there is no indication that extant elective-share laws embody an ethic of support.230 Statutory provisions governing the elective share have by and large also not embraced the notion of marriage as an economic partnership, and a few commentators have argued that the Uniform Probate Code does so awkwardly.231 After all, the typical elective share does not come close to giving the surviving spouse the equivalent of an intestate share, and if we assume that the reasonable testator, had he embraced the partnership aspect of his marriage, would have
227 Unif. Prob. Code § 2-803(a) (amended 2010), 8 pt.1 U.L.A. (2013); see also Restatement (Third) of Prop.: Wills and Other Donative Transfers § 8.4 cmt. j (Am. Law Inst. 2003); Mary Louise Fellows, The Slayer Rule: Not Solely a Matter of Equity, 71 Iowa L. Rev. 489, 505 n.55 (1986). 228 Unif. Prob. Code art. II pt. 2 cmt. at 140, 143, 147 (amended 2010). 229 See, e.g., Hastings v. Hastings, 497 S.E.2d 203, 207 n.8 (W. Va. 1997). 230 Unif. Prob. Code art. II, pt. 2 gen. cmt. at 147 (amended 2010) (“Current elective-share law implements this theory poorly.”). 231 Margaret v. Turano, UPC Section 2-201: Equal Treatment of Spouses?, 55 Alb. L. Rev. 983 (1992); Mary Moers Wenig, The Marital Property Law of Connecticut: Past, Present, and Future, 1990 Wis. L. Rev. 807; Charles H. Whitebread, The Uniform Probate Code’s Nod to the Partnership Theory of Marriage, 11 Prob. L.J. 125 (1992); Ellen J. Beardsley, The Revised UPC Elective Share: Missing Essential Partnership Principles, 13 Quinnipiac Prob. L.J. 225 (1998). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 137 bestowed at least as much on his surviving spouse as pretermitted- spouse statutes do, we are faced with very little support for the economic partnership idea.232 From this intestacy perspective, the elective share appears to be more promotive of testamentary freedom. It allows the testator to contradict the assumptions upon which intestacy law is built and then, only if the surviving spouse complains, scales them back to an amount less than what society has deemed she should receive in intestacy. Less support for the theory of marriage as an economic partnership can scarcely be imagined. The question becomes, then, whether the elective share, like other forms of family protection in succession law, protects the surviving spouse against penury. There is reason to call this rationale into question. First, because an assessment of the surviving spouse’s needs is not part of the elective-share calculus, as it is, for example, with respect to the family allowance, a forced share will typically “give a spouse more or less than is necessary for support.”233 Over- and under-protection of a surviving spouse’s need for support does not establish that support is not an important driver of elective-share policy. But cutting substantially against the support theory is that the elective share, unlike other family protection measures that are clearly meant for support,234 does not take priority over the estate’s debts, security interest and liens.235 Some commentators, acknowledging the schizophrenic nature of elective-share laws, have become convinced that the statutes are meant both to provide support to the surviving spouse and to compensate her for her contributions to the marriage.236 As discussed above, there is little evidence to support such a proposition. Left with no support for either the avoidance-of-penury or the economic- partnership theory, we are left to compare the elective share with the regime it replaced. As a replacement for dower,237 the elective share
232 Unif. Prob. Code art. II pt. 2 gen. cmt. at 141 (amended 2010) (“The original elective-share fraction of one-third of the decedent’s estate plainly does not implement a partnership principle.”). 233 William M. McGovern et al., Wills, Trusts and Estates Including Taxation and Future Interests 89 (1988); see also Unif. Prob. Code art. II, pt. 2 gen. cmt (amended 2010) (“Current elective-share law implements this theory poorly.”). 234 See supra Part III.A. 235 See, e.g., N.Y. Est. Powers & Trusts Law § 5-1.1A (LexisNexis 2018). 236 Mora & Schlesinger, supra note 198; Dukeminier, supra note 77, at 514. 237 Note that some states have retained dower, e.g., Ohio. See, e.g., Ohio Rev. Code Ann. § 2103.02 (LexisNexis 2018). 138 Storrow may have been intended to override dower’s purpose to protect and provide for the widow against disinheritance.238 Dower is, in most iterations, merely a life estate.239 During her lifetime, the surviving spouse has limited control over the assets that comprise her dower. At her death, she has no dispositional control over what is left over. The elective share is distinct: it is less protective than dower because it gives the surviving spouse no protection against the decedent spouse’s creditors. It does, however, give the surviving spouse more dispositional control than does the typical provision for dower.240 As a replacement for dower, then, elective share appears to emphasize fairness rather than protection. Because the elective share is an election of the surviving spouse, it has little to do with whether a testator attempted deliberately to prevent her from benefting from his estate. This is because the surviving spouse may exercise the election even if she is named a benefciary of the estate. The elective share not only gives the surviving spouse the right to beneft from the estate but the opportunity to claim a larger share of the assets than the testator provided.241 A concern about disinheritance by itself does not explain these mechanics. The protective function is thus secondary to some concern about fairness, with the surviving spouse vested with the right to make the decision on her own. Whether this is fairness concerning the marital economy can well be doubted, as most elective share provisions take no account of the contributions of the surviving spouse. Thus, although it is an unsatisfying conclusion, the elective share does not track either of the common rationales for family protection provisions. As Ralph Brashier has noted, “[c]onventional elective-share laws are typically simple but completely arbitrary; they make no pretense that spouses are participants in a partnership. [The n]eeds of the surviving spouse and length of the marriage are irrelevant under the conventional elective share, which generally provides the surviving spouse with a fxed fractional part of the decedent’s estate.”242 The protection aforded by the elective share, then, must have something to do with the threat of disinheritance on another level. Under the elective share, disinheritance is not perceived as the threat it is when it comes up against policies of
238 See Haskell, supra note 64, at 150, 153, 155. 239 See, e.g., Ohio Rev. Code Ann. § 2103.02 (LexisNexis 2018). 240 Haskell, supra note 64, at 150. 241 Brashier, supra note 2, at 14–15. 242 Id. at 38. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 139 support and deservedness; thus, the share does not match our assumptions about what testators who do not want to disinherit their spouses would do. This understanding that the elective share is an entitlement to property by virtue of having survived the decedent as his spouse, and nothing more, seems to have been overlooked in the literature. Haskell comes closest to detecting it: “the forced share may be justifed as the sharing which inheres in the marriage relationship regardless of fnancial need or compensation.”243 “It never exceeds the intestate share; it would make no sense to provide for a fraction which exceeded that which would pass to the spouse if there were no disinheriting will.”244 The real point, though, is that it does make sense to provide for a fraction less than what would pass to the spouse if there were no disinheriting will.
IV. Creditor’s Rights and Family Protection Up to this point, this article has focused primarily on what form of protection legislatures are advancing when they enact family protection statutes. Do family protection regimes serve primarily the interests of the decedent or those of the survivors? When we say that disinheritance is the primary issue family protection measures are attempting to address, the answer, as the foregoing analysis reveals, is both. What is missing, then, is the dimension of family protection laws that is hiding in plain sight: the interests of creditors. Discussion of the precise interest of creditors in this context is scant in jurisprudence, beyond the very general admonition specifying that an important legislative purpose behind probate laws is “the prompt settlement of estates.”245 Delving more deeply into the role creditors play in schemes meant to protect the family is imminently more revealing about the policies behind those schemes than are the largely unexamined statements, contested in Part II, that they promote policies of support and fairness.
A. Creditors in Probate Law As a general matter, creditors of a decedent’s estate have priority over legatees,246 whether or not a will contains a “just debts”
243 Haskell, supra note 64, at 153. 244 Id. at 151. 245 Utah Code Ann. § 75-3-101 (LexisNexis 2018). 246 In re Estate of Farren, 131 A.3d 817, 840 (Del. Ch. 2016) (noting the general priority that creditors’ claims have over bequests in the will). 140 Storrow clause.247 This rule is not afected by any provisions in the will, even a clause attempting to elevate a pecuniary legacy to the level of a “just debt.”248 One wills law doctrine of specifc interest to creditors is the exoneration of liens. The doctrine states that liens on real property shall be satisfed with other assets in the estate and pass unencumbered to the benefciary unless the will expresses a contrary intention.249 A just debts clause is not required for the exoneration of liens doctrine to apply but may be used as evidence supporting its application.250 Many states have abolished the exoneration of liens doctrine by statute, leaving real estate to pass encumbered to the named benefciary unless the will specifcally directs otherwise.251 A just debts clause by itself would not be sufcient to alter this result.252 Family protection schemes provide prophylaxis against penury for surviving spouses and children, but the matter is not as simple as saying that creditors must take a back seat to the protection of the family. Probate law has traditionally favored creditors over heirs and will benefciaries.253 For example, intestate takers may take nothing under intestacy provisions if the testator’s entire estate is required for the satisfaction of her debts. Eforts to protect the family, then, “must strike some balance between the need to protect the immediate family and the desire to protect the creditors of the decedent.”254 Striking this balance is the aim of measures that entitle creditors to payment from the decedent’s estate in accordance with a system that classifes their claims. Funeral expenses, the costs of the decedent’s last illness, and the family allowance often have the highest priority, followed by debts owed in the form of wages to employees, taxes and rents, and fnally obligations in the form of judgments and contracts.255
247 97 C.J.S. Wills § 2222 (2018)(noting that a just debts clause “is meaningless as to actual debts”). 248 Id. 249 Estate of Fussell v. Forney, 730 S.E.2d 405, 410 (W. Va. 2012). 250 See, e.g., id. at 411. 251 Id. at 410. 252 Id. (noting Ohio’s provision denying exoneration “regardless of a general direction in the will to pay the testator’s debts . . . .”). This is not to deny that extrinsic evidence in a case might show that the testator intended the just debts clause to efect exoneration of the mortgage. See, e.g., In re Estate of Payne, 895 A.2d 428, 435 (N.J. 2006). 253 97 C.J.S. Wills § 2222 (2018). 254 Schmidt, Jr., supra note 8, at 137. 255 See, e.g., Del. Code Ann. tit. 12, § 2105 (2018); Tex. Est. Code Ann. §§ VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 141
Understanding the role creditors play in family protection mechanisms requires familiarity with the hierarchy among the statutory allowances. The Uniform Probate Code, for example, prioritizes the homestead allowance over the family allowance and the family allowance over the personal property set-aside.256 Since general creditors’ claims are subordinate to these allowances, creditors are understandably keenly interested in the establishment of their value. For example, Missouri’s statute allows creditors to participate in the determination of a reasonable family allowance.257 Once established, the family allowance is by no means sacrosanct. Although it has priority over the claims of general creditors, it is not allowed to extend beyond one year if the estate is “inadequate to discharge allowed claims.”258 By contrast, a surviving spouse’s creditors cannot compel her to renounce the will,259 but of course her own creditors may reach whatever she receives if she does: family protection measures, after all, “bar[] only the general creditors of the estate.”260 Finally, it bears noting that a decedent’s will may always provide “otherwise,”261 afording the testator an indirect manner of protecting his creditors. It goes without saying that the elective share is primary to the interests of the benefciaries named in a will,262 but it, like intestate and pretermitted shares, is not shielded from creditors; moreover, testators are free to specify the apportionment of responsibility for paying the elective share among the benefciaries under the will.263
355.102, 355.103 (West 2017). 256 Unif. Prob. Code §§ 2-403 (amended 2008), 2-404 (amended 2010); see also Ala. Code § 43-8-112 (LexisNexis 2018). But see Va. Code Ann. § 64.2-309(B) (2018) (prioritizing the family allowance). 257 John A. Borron, Jr. & David English, Missouri Practice Volume 5B, Probate Law & Practice § 964 (3d ed. 1999). 258 Cal. Prob. Code § 6543 (Deering 2018); Schmidt, Jr., supra note 8, at 141, 144. 259 Schmidt, Jr., supra note 8, at 145. 260 Id. at 140 (quoting In re Wallace’s Estate, 246 P.2d 894, 901 (Colo. 1952) (emphasis added)). But see Wash. Rev. Code Ann. § 11.54.070(1) (LexisNexis 2018) (award to spouse is immune from her debts). I do not mean to suggest here that the surviving spouse’s homestead rights are subject to the claims of her creditors. The theory behind the protection of the homestead is that it is not a part of the estate at all but is held personally by the surviving spouse. See In re Wallace’s Estate, 246 P.2d 894, 901 (Colo. 1952). 261 Schmidt, Jr., supra note 8, at 141–42. 262 In re Bassford’s Will, 127 N.Y.S.2d 653, 659 (Sur. Ct. 1953). 263 See, e.g., N.Y. Est. Powers & Trusts Law §5-1.1-A(c)(2) (LexisNexis 142 Storrow
Nonetheless, statutory allowances may not be charged against the elective share or charged against by the elective share;264 they are simply excluded from the value of the estate upon which elective or pretermitted shares are determined.265 Furthermore, it is important to highlight the lack of consistency among provisions exempting the family allowance and exempting property set-asides from claims for funeral expenses and the decedent’s last illness.266 The relationship between creditors and statutory enactments that provide family protection is thus more complicated than meets the eye.
B. Family-Member Contract Creditors and Family Protection Contracts to make a will are very often employed by spouses to ensure that the children of the marriage will be taken care of even if the surviving spouse remarries. Such contracts curtail the ability of the surviving spouse to alter his estate plan without the estate incurring liability.267 The potential for confict arising from such contracts is great in a society where the incidence of “blended” families due to multiple marriages is high.268 Estate planning
2018); In re Boschen’s Will, 137 N.Y.S.2d 8, 10 (Sur. Ct. 1954) (direction to leave trust provisions intact “as far as possible”); In re Gingold’s Will, 127 N.Y.S.2d, 653, 659 (Sur. Ct. 1952) (direction to pay elective share exclusively from residuary devise). As a practical matter, however, rare is the will that specifes how the elective share will impact the gifts to the other benefciaries, R.D. Hursh, Annotation, Who Must Bear Loss Occasioned by Election Against the Will, 36 A.L.R.2d 291, § 3 & n.2 (1954), and this may be due to testators’ failure to consider the possibility that his spouse will choose to elect against the will, see, e.g., In re Rosenzweig’s Will, 224 N.E.2d 705, 199 (N.Y. 1966); Note, Salvaging a Will after the Widow Renounces, 61 Harv. L. Rev. 850, 851 (1948); Atkinson, supra note 3, at 123 (“[S]eldom does the will indicate that the testator contemplated his spouse’s renunciation, much less what should be done in that event.”). 264 Alaska Stat. § 13.12.202(c) (2018); Fla. Stat. Ann. § 732.2105 (LexisNexis 2018); Kans. Stat. Ann. § 59-6a202(c) (West 2018); Mass. Ann. Laws ch. 190B, § 2-404(b) (LexisNexis 2018); Va. Code Ann. §§ 64.2-308.3(B), 64.2-309(C), 64.2-310(C), 64.2-311(D) (2018). 265 See, e.g., Fla. Stat. Ann. § 732.402 (LexisNexis 2018); Neb. Rev. Stat. Ann. § 30-2314(a) (LexisNexis 2018). 266 See supra note 104. See generally William W. Horne, Jr., Family Protection in New York: A Proposal, 47 Alb. L. Rev. 1343, 1360–62 (1983); Bratt, supra note 163, at 402–04. 267 Carolyn L. Dessin, Troubled Relationship of Will Contracts and Spousal Protection: Time for an Amicable Separation, 45 Cath. U. L. Rev. 435, 438–39 (1996) (noting that contracts relating to wills do not technically prevent testator from changing his will). 268 Plager, supra note 142, at 687; Dessin, supra note 267, at 435 (noting that “the VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 143 professionals recognize that the society we now live in is one where many, if not most, frst marriages do not last and testators may have been twice or three times married before they die.269 Contracts in this context may be used to prevent the children of a frst marriage from taking nothing from their deceased parent’s estate because he has left all of his property to his surviving second spouse. One perennial issue is the extent to which the survivor of the contracting parties may consume the property that would otherwise go to her deceased spouse’s children on her death.270 But an even more enduring issue is the right of a surviving second spouse or a child of the second marriage to claim statutory protections that confict with the terms of the contract. A variety of rationales have led courts to reach opposing outcomes. Moreover, these conficting conclusions are difcult to harmonize across jurisdictions. Contracts to make or not to revoke a will are enforceable obligations, the breach of which gives rise to a claim for money damages or equitable relief.271 Scoles and Halbach explain how such claims are pursued outside of the probate system:
The contract cannot be probated, for example, if the will is not made; nor can a revoked will be probated even if its revocation was in violation of a contract. Also a contract generally cannot be used to oppose probate of an inconsistent will because the remedy for breach is not at probate.272
Breach of such a contract gives rise to an action for a constructive trust or damages against the estate or the devisees.273 The important question for family protection is not so
growing number of multiple marriages has helped set the stage for a confict that often occurs between the children from one marriage and the spouse of another”). 269 George B. Kozol, State Elective Share Laws, 60 J. of Fin. Serv. Professionals, March 2006, at 27, 28; Mora & Schlesinger, supra note 198, at 44, 46. 270 Phillip E. Hassman, Annotation, Right of Party to Joint or Mutual Will, Made Pursuant to Agreement as to Disposition of Property at Death, to Dispose of Such Property During Life, 85 A.L.R.3d 8 (1978); Scoles, et al., supra note 150, at 221. 271 Scoles et al., supra note 150, at 207–08. 272 Id.; see, e.g., Wash. Rev. Code Ann. § 11.12.060 (LexisNexis 2018). 273 Shimp v. Huf, 556 A.2d 252, 258 n.4 (Md. 1989); Shimp v. Shimp, 412 A.2d 1228, 1236 (Md. 1980); Scoles, supra note 150, at 221; Dukeminier, supra note 77, at 325. 144 Storrow much whether the contract has been breached, but rather the more common scenario where the decedent promises to bequeath property to his children from his frst marriage. The decedent usually does not breach the contract but instead remarries. When he dies, the surviving spouse brings a claim for statutory allowances or an elective or pretermitted share, damaging the expectations of the children of the frst marriage. Do the contract benefciaries become creditors of the estate and achieve priority over claims for statutory shares or allowances? In all likelihood, no: as noted above, statutory allowances take priority over the claims of contract benefciaries.274 The real controversy is whether a contract benefciary should take precedence over the elective or pretermitted shares, given that all of these claimants’ rights are subject to creditors’ claims.275 As Scoles and Halbach note, “[t]his problem arises with some frequency, and the cases are split.”276 Carolyn Dessin goes further in describing this area of the law as “a tangled mess of decisions.”277 This section will discuss a handful of these cases in chronological order, beginning with a decision of the New York Court of Appeals from 1967 and ending with a decision of the Court of Appeals of Alabama from 1997. But frst, an illustration demonstrating that we are dealing here exclusively with the probate estate; there is no question raised about augmenting the estate with other assets. In Norris v. Bradshaw, there was no contract either to make or not to revoke a will.278 The decedent made a gift to his son- in-law several years after his marriage to the surviving spouse.279 The surviving spouse sued to claw back the gift, arguing that the family allowance was a debt encumbering the gift at the time it was made.280 The court reasoned that a claim to a family allowance has no existence during a marriage, and thus there was no basis for the surviving spouse’s argument that she was a creditor of the decedent at the time he made the gift and that the debt somehow encumbered
274 See, e.g., Patecky v. Friend, 350 P.2d 170, 177 (Or. 1960); Shimp, 556 A.2d at 264 (holding that the family allowance has priority over “the claims of ordinary contract creditors and legatees under a will”). 275 See, e.g., Fla. Stat. Ann. § 733.805(1) (LexisNexis 2018); N.Y. Est. Powers & Trusts Law § 5-1.1-A(a)(2) (LexisNexis 2018). 276 Scoles et al, supra note 150, at 221. 277 Dessin, supra note 267, at 457. 278 Norris v. Bradshaw, 45 P.2d 638 (Colo. 1935). 279 Id. at 638. 280 Id. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 145 the gift.281 Norris establishes an important baseline: statutory allowances and the elective share do not create rights before a decedent’s death. Surviving family members are thus not creditors of the estate based on family protection provisions alone. They may become creditors, however, based on contracts the decedent enters into during his lifetime that burden his estate at the time of his death. In Rubenstein v. Mueller, married couple Bertha and Conrad bound themselves, via a joint and mutual will, to bequeath their entire estate to certain benefciaries.282 Bertha died frst, and Conrad then married Martha and, in a new will, made her his sole benefciary.283 The court determined that this new will, though admitted to probate, was inefective to bar the claims of the benefciaries who were supposed to take Conrad and Bertha’s collective property pursuant to the joint will and that a constructive trust would be imposed in the benefciaries’ favor upon any property received by Martha from Conrad’s estate.284 Martha attempted to undermine this result by claiming a forced share, arguing that public policy “guarantee[s] the widow a distributive share in her husband’s estate [and] constitutes a limitation upon the right of a party to a joint will to bind himself to a testamentary arrangement which would not provide a surviving spouse with such a share in his estate.”285 The court held for the benefciaries, reasoning that, having promised all of his probate estate to the benefciaries, “[Conrad] had no property interest in these assets against which his widow’s right of election could operate.”286 The agreement had, in efect, transformed his title in his property into a mere life estate with the power to consume.287 In the course of its analysis, the Rubenstein court distinguished In re Hoyt’s Estate, wherein the decedent had entered into a marital termination agreement with his frst spouse to establish a $1.5 million testamentary trust for her and their children.288 Hoyt, having remarried, complied with this obligation.289 He died less than four
281 Id. at 639. Cf. In re Estate of Fox, 440 N.Y.S.2d 811, 814 (Sur. Ct. 1981) (elective share did not apply to assets outside of the estate). 282 Rubenstein v. Mueller, 278 N.Y.S.2d 845, 847 (1967). 283 Id. 284 Id. at 848. 285 Id. at 847. 286 Id. at 849. 287 Id. 288 In re Estate of Hoyt, 174 Misc. 512, 513 (N.Y. Sur. Ct. 1940). 289 Id. 146 Storrow years after his remarriage.290 The surviving spouse applied for a forced share in the amount of one-third of the estate and argued that she should have priority over the establishment of the trust.291 In response, the trust benefciaries claimed that they were creditors of the estate and that the forced share should be paid out of what remained of the estate after the trust was funded.292 Although the priority of the general creditors’ claims over the elective share was not questioned, those creditors and the surviving spouse claimed that the trust benefciaries were not general creditors and that the surviving spouse’s elective share had priority over their rights under the separation agreement.293 The court agreed, reasoning that a debt owed to a general creditor is a promise to convey property, whereas a contract to make a testamentary provision is not; its breach cannot transform the expectant benefciary into a creditor but merely entitle her to an action in equity to enforce the obligation.294 Citing precedent, the court suggested that the ex-spouse could be deemed a creditor of the estate only if the agreement expressly gave her that status.295 Since the testator in this case had performed the obligation to set up the trust in the amount agreed to, there was no breach of contract in any event.296 The fact that the trust could not be funded in the amount agreed to because of the priority of the surviving spouse’s election did not constitute a breach of contract.297 Since the expectant benefciaries were in no measure elevated to the status of creditors, “they take subject to the operation of the statutes relating to testamentary dispositions, including the right of the surviving widow to take her [elective] share . . . . Their rights are also subordinate to all true creditors of the estate.”298 In re Beeruk, a Pennsylvania decision, is in substantial conformity with Rubenstein.299 In this case, the testator contracted
290 Id. 291 Id. at 514. 292 Id. 293 Id. at 512. 294 Id. at 515. 295 Id. at 514–15. 296 Id. at 516 (“The testator performed that agreement. He undertook to do no more.”). 297 Id. 298 Id. at 516. 299 Compare In re Estate of Beeruk, 241 A.2d 755, 759 (Pa. 1968) (holding that benefciary of testamentary contract was a creditor of the estate with priority over the surviving spouse’s elective share), with Rubenstein v. Mueller, 278 N.Y.S.2d 845, 849 (1967) (holding that the testamentary agreement VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 147 to give his entire estate to his nephew and did so in a duly executed will.300 He later remarried and executed a new will bestowing the residue of his estate upon his wife.301 The Beeruk decision states with certainty that under the contract the nephew became a creditor of the estate and thus had priority over the elective share.302 In re Dunham’s Will, on the other hand, tilts in the direction of Hoyt.303 Pursuant to a separation agreement, Walter agreed to bequeath certain property to Mary, his ex-wife.304 He did so and also remarried. When he died, his second wife claimed her elective share.305 Thirty years after the decision in Hoyt, the Dunham court chose not to focus on whether an agreement to make a will elevates the contract benefciaries to the status of creditors but instead emphasized that public policy dicates that “a man who is obligated to support his wife during his lifetime should not by his will be permitted to disinherit her.”306 Because of this policy, the court reasoned that it is not possible for “a married person to bind himself by contract to devise or bequeath property by will in a manner that would deprive his surviving spouse of her statutory rights.”307 Contracts to make or not to revoke a will can also arise and confict with pretermitted heir statutes. A case of this type is Dotson v. Dotson.308 In Dotson, having no children of their own, married couple Elbert and Irma executed a joint will that benefted Elbert’s nephew Robert and Irma’s daughter Deborah.309 After this will was executed, the couple had a son, Mark.310 Elbert’s death triggered the provision that Irma and Robert would divide his estate, but Irma argued that Mark was entitled to all of Elbert’s estate as a
transformed the decedent’s title into a life estate with the power to consume). 300 In re Estate of Beeruk, 241 A.2d 755, 757 (Pa. 1968). 301 Id. 302 Id. at 759. 303 Compare In re Dunham’s Will, 314 N.Y.S.2d 29, 35 (Sur. Ct. 1970) (basing holding that testamentary contract benefciaries are not creditors on public policy that surviving spouse not be disinherited), with In re Estate of Hoyt, 174 Misc. 512, 515 (N.Y. Sur. Ct. 1940) (basing holding that testamentary contract benefciaries are not creditors on distinction between a debt and a contract to make a testamentary devise). 304 In re Dunham’s Will, 314 N.Y.S.2d 29, 30 (Sur. Ct. 1970). 305 Id. 306 Id. at 34–35. 307 Id. at 35. 308 Dotson v. Dotson, 372 S.W.3d 398 (Ark. Ct. App. 2009). 309 Id. at 399. 310 Id. 148 Storrow pretermitted child.311 The trial court agreed, despite the fact that the joint will constituted a contract.312 On appeal, the court recognized the potential for confict between a contract not to revoke a will and protection for pretermitted children.313 Without a great deal of analysis, the court held “that the rights of the after-born child must prevail,”314 later remarking that an after-born child “is entitled to the highest level of protection.”315 Note that when faced with a contract creditor, the court cannot simply claim that upholding the pretermitted child statute is necessary to carry out the decedent’s presumed intent. The decedent has arguably expressed his intent by entering into a contract regarding the disposition of his estate. He well understands that he has the choice to marry or have children and intends the contract creditor to take priority over their rights. A court asked to resolve the confict thus has a choice between reasoning, as in Hoyt, that benefciaries of will contracts are not true creditors; or holding, as in Dotson, that the overarching policy is to protect the omitted child. This latter position is tantamount to holding that a will contract contains an implied term making it contingent on the decedent’s not having another child. This brings us to the most frequently cited opinions in this area, Shimp v. Huf316 and Via v. Putnam.317 In Shimp, the court made the implied-term rationale more explicit. The testator and his frst wife had executed a joint and mutual will that was adjudged in an earlier case to constitute a binding contract.318 Dicta in the opinion mentions the possibility that Lester Shimp might marry again and that his second spouse would simply have to accept whatever disadvantages the contract would impose upon her rights should Lester die before her.319 At Lester’s death, his second spouse Lisa Mae sued for the right to elect against the will and for a family allowance.320 The court found in her favor, using reasoning that
311 Id. 312 Id. at 400. Irma raised the question in the appeals court whether the will constituted a contract. Id. at 402–03. The appeals court did not take up the issue because it was not properly appealed. Id. at 403. 313 See id. at 401–02. 314 Id. at 401. 315 Id. at 402. 316 Shimp v. Huf, 556 A.2d 252 (Md. 1989). 317 Via v. Putnam, 656 So. 2d 460 (Fla. 1995). 318 Shimp v. Shimp, 412 A.2d 1228, 1236 (Md. 1980). 319 Id. at 1235. 320 Shimp v. Huf, 556 A.2d 252, 255 (Md. 1989). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 149 contradicted the previous decision to the efect that benefts under contracts not to revoke a will are “limited by the possibility that the survivor might remarry and that the subsequent spouse might elect against the will.”321 This is because the protection accorded surviving spouses by forced share and family allowance legislation is prior to, and thus superior to, any contract rights a decedent might exercise to make a will or not to revoke one.322 The court’s reasoning was thus grounded in the public policy “surrounding the marriage relationship” generally, and in favor of a surviving spouse’s right to elect against the will specifcally.323 The court, in essence, read an implied term into the contract. A precursor to Via v. Putman was Johnson v. Girtman.324 J.D. and Kate Girtman wanted their grandchildren to one day own a valuable parcel of land in downtown Miami.325 Instead of settling the parcel into a trust established to achieve this aim, the Girtmans conveyed it to their six children pursuant to a contract binding each of the children to devise his or her share of the property to their bodily heirs or, alternatively, their siblings.326 The agreement specifcally stated that the grantees would provide for their spouses in their wills so that they could claim no dower interest in the parcel.327 The spouses, including Katherine Girtman’s husband Lee Johnson, signed a document promising that they would “‘take whatever steps necessary by deed or gift or otherwise to accomplish your desire that your grandchildren will ultimately inherit that [property].’”328 When Katherine Girtman died, her will bequeathed her entire estate to Lee, and the surviving siblings sued to enforce the contract.329 The trial court determined that the contract was enforceable and that by signing the document, Lee had efectively waived his elective share with respect to the property.330 On appeal, Lee made several arguments, among them that “the Agreement and 1957 letter constitute an impermissible attempt to circumvent the spouse’s
321 Via v. Putnam, 656 So. 2d 460, 465 (Fla. 1995); Putnam v. Via, 638 So. 2d 981, 984 (Fla. Dist. Ct. App. 1994); Shimp, 556 A.2d at 263. 322 Shimp, 556 A.2d at 261. 323 Id. at 263. 324 Johnson v. Girtman, 542 So. 2d 1033 (Fla. Dist. Ct. App. 1989). 325 Id. at 1034. 326 Id. 327 Id. 328 Id. 329 Id. at 1035. 330 Id. 150 Storrow elective share.”331 The argument failed because, among other reasons, Florida’s elective share statute, at the time this case was litigated, applied only to the net probate estate.332 Given that the net probate estate does not include “valid claims against the estate,” including the contract Katherine signed, the Girtman parcel could not be included in any property against which Lee might take an elective share.333 Perhaps acknowledging the circularity of the reasoning in Johnson, the Supreme Court of Florida, in Via v. Putnam, disapproved of Johnson and embraced the reasoning in Shimp.334 The case involved a decedent, Edgar, who with his frst wife Joann executed mutual wills naming the surviving spouse the benefciary of the estate of the frst to die and the couple’s children the benefciaries upon the death of the survivor.335 Each will contained a binding term that it would not be revoked by the testator.336 Edgar outlived Joann and married Rachel, but he did not change his will after his remarriage.337 When Edgar died, Rachel claimed a pretermitted spouse’s share of the estate.338 The children sued the estate for breach of contract.339 The Court of Appeal characterized the quandary presented as follows: “If the appellees receive the residuary estate, Rachel will receive nothing except family allowance and any exempt property that may pass to her free from claims of creditors.”340 Although the trial court ruled in favor of the children,341 the appellate courts disapproved of that result because of the strong public policy favoring the protection of a surviving spouse’s right to her deceased spouse’s estate.342 Since marriage is “the most important type of contract ever formed,”343 testamentary contracts are “‘limited by the possibility that the survivor might remarry . . . .’”344 Commentators on the clash of will contracts and family
331 Id. 332 Id. at 1037. 333 Id. 334 Via v. Putnam, 656 So. 2d 460, 465–66 (Fla. 1995). 335 Putman v. Via, 638 So. 2d 981, 984 (Fla. Dist. Ct. App. 1994). 336 Id. 337 Via v. Putnam, 656 So. 2d 460, 461 (Fla. 1995). 338 Id. 339 Id. 340 Putman v. Via, 638 So. 2d 981, 982 (Fla. Dist. Ct. App. 1994). 341 Id. 342 Via v. Putnam, 656 So. 2d 460, 464–65 (Fla. 1995). 343 Id. at 465 (internal quotation marks omitted). 344 Id. (quoting Shimp v. Huf, 556 A.2d 252, 263 (Md. 1989)). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 151 protection provisions have not been kind toward the decision in Putnam and, by extension, in Shimp. Adam Hirsch, for example, fnds the decision indefensible because it fails to acknowledge that if the testator had breached the contract, Rachel would not have been a pretermitted spouse and would have had to settle for the lesser amount guaranteed by the elective share.345 But of more concern for our purposes is Hirsch’s statement that the surviving spouse carries the day seemingly with an analysis that merely skims the surface and “reads more like an afterthought.”346 In a related criticism, Carolyn Dessin opines that decisions of this sort generally cast about for the “‘right’ result” rather than grounding their analysis “on careful analysis or consistent policy.”347 The policy puzzle in this area has indeed given rise to a cacophony of conficting decisions. Although the cases are split, there appears, if Putnam and Shimp are any indication, to be a defnite trend in the direction of upholding the statutory shares of a surviving spouse against contract benefciaries.348 Nonetheless, “[i]n such a climate, the practitioner is ill-advised to bargain for testamentary benefts as part of a negotiated divorce settlement”349 because, given the microscopic discussion of policy in the decisions,350 it is next to impossible to predict the direction a court will take. Where one court makes an admittedly unconvincing distinction between contracts to make a will and marital termination agreements,351 another court believes there is no valid distinction, that benefciaries of both constitute creditors of the estate.352 Where one court believes equity favors the surviving spouse,353 another court believes in strict
345 Hirsch, supra note 169, at 1356–57. 346 See id. at 1357. 347 Dessin, supra note 267, at 437. 348 See id. at 456 (citing MacDonald, supra note 198, app. D at 368). 349 Margaret Valentine Turano, Practice Commentaries, in N.Y. Est. Powers & Trusts Law § 5-1.1-A (LexisNexis 2018). 350 See Peter B. Swann & Kevin J. Earnest, Developments in Maryland Law: Property, 49 Md. L. Rev. 715, 734 (1990) (citing Shimp v. Huf, 556 A.2d 252, 263 (Md. 1989)) (noting the lack of analysis in Shimp regarding the policy behind Maryland’s elective-share statute and why it assumed priority in the case). 351 See, e.g., Rubenstein v. Mueller, 225 N.E.2d 540, 544 (N.Y. 1967). 352 Audley William Sheppard, Contracts to Make Wills and the Family Protection Act of 1955: Is The Promisee a Creditor or a Benefciary?, Vict. U. Wellington L. Rev. 157, 159–60 (1985) (discussing Schaefer v. Schuhmann [1972] AC 572 (PC) (appeal taken from Austl.)). 353 In re Estate of Beeruk, 241 A.2d 755, 759 n.6 (Pa. 1968) (referring to the trial court’s reasoning). 152 Storrow enforcement of contracts to devise.354 What policies are driving these decisions—“freedom of testation and sanctity of contract,” “adequate provision for dependants of deceased persons,”355 or none of these? When examined closely, the cases boil down to the question of who knew what when or, rather, who should be charged with notice that their position is or might be deemed subordinate to the rights of another.356 As the Supreme Court of Montana reasoned in the context of a judgment creditor who had attached property of the decedent prior to his death,
The creditor was aware of the family protection laws at the time he engaged in business with the debtor and knew that his remedy for breach might be subject to the same. Unlike a mortgage, a judgment lien does not create a vested right in a specifc piece of property. Short of such a right, the existence of the lien should not prevent the property to which the lien attached from being marshalled as assets of the estate.357
This reasoning is a more pointed version of the remark made by the Shimp court and quoted above that a will contract benefciary must realize that her “rights under the contract were limited by the possibility that the survivor might remarry and that the subsequent spouse might elect against the will,”358 reasoning that was overshadowed by the court’s subsequent discussion of the importance of marriage.359 In will contract cases, the policy choice is not plain. Surviving spouses might equally be deemed to understand that creditors
354 See, e.g., Hudson v. Hudson, 701 So. 2d 13, 15 (Ala. Civ. App. 1997). The courts in New Zealand have, similarly, reached contradictory decisions. See Sheppard, supra note 352, at 158. 355 Sheppard, supra note 352, at 158. 356 See, e.g., Estate of Donner v. Anton, 364 So. 2d 742, 748–51 (Fla. Dist. Ct. App. 1978) (disapproving of the idea that dower rights could in any way be interfered with by “contracts which he may have entered into without the wife’s actual knowledge or consent”); Shimp v. Huf, 556 A.2d 252, 263 (Md. 1989) [Putnam v. Via, 638 So. 2d 981, 984 (Fla. Ct. App. 1994)]. In Patecky v. Friend, lack of knowledge of the contract was equated with innocence; enforcing the contract in such circumstances would be “harsh, oppressive, or unjust . . . .” 350 P.2d 170, 175–76 (Or. 1960) (citation omitted). 357 In re Estate of Wilhelm, 760 P.2d 718, 724 (Mont. 1988). 358 Shimp v. Huf, 556 A.2d at 261. 359 See id. at 261–62. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 153 whose claims predate the marriage take precedence as creditors might be deemed to understand that a debtor might one day marry and subordinate their claims to the claims of the surviving spouse.360 The question is one of pure policy and should not be resolved upon the pretense that concepts such as constructive notice are in any way analogous so as to be reasonably applicable. Despite our conclusion in Part III that, for elective share purposes, marriage deserves special recognition, the courts have not decided whether marriage is so desirable that it deserves a degree of protection that would elevate it above the contracts the decedent entered into during his lifetime regarding the disposition of his estate. Sufce it to say that the fact that marriage is special and encouraged is too slender a reed upon which to build a theory of implied terms in contracts to make wills, especially those that were crafted to protect the family in the frst place. For the time being, then, the policy behind family protection in the realm of will contracts will unfortunately remain amorphous.
V. Conclusion As made clear above, protecting surviving spouses and dependent children is an overarching policy of the law of wills and intestacy. Alongside testamentary freedom and a commitment to promoting the presumed intent of intestate decedents, probate rules embrace the notion that the decedent’s closest family members should not sufer disinheritance. Many defensible assumptions have been made about why the law should prohibit disinheritance in such cases. They range from ideas about testamentary intent itself to concepts about the need to provide support for surviving spouses and children and to recognize the surviving spouse’s important contributions to the marital economy. The remarkable diversity of family protection statutes canvassed in this article certainly does refect a combination of concerns that decedents might use their testamentary freedom in ways that impoverish those who are dependent upon them or might be unfair to family members who have contributed in important ways to the accumulation of their wealth. Jurisprudence in this realm also underscores the point that where decedents have not made their testamentary preferences known, the law is justifed in making assumptions, grounded in the role families play in society,
360 See, e.g., Patecky v. Friend, 350 P.2d at 176–77 (“[R]emarriage of either Samuel or Emma was within their contemplation when the contract was made and became a part thereof.”). 154 Storrow about whom the decedent would have wished to beneft and to what degree. Where the jurisprudential trail goes cold, we must probe more deeply. The policies promoted by the elective share are not easily explained. The share is not merely a way of winding up the marital economy or providing support. If it were, the share would be something larger or more meager depending on the rationale. Placing the share somewhere in the middle of where it would fall if it were meant to recognize a marital partnership or ofer support appears to balance the testamentary freedom of the disinheriting testator with a desire to reward the surviving spouse for remaining married to him until his death. Whether this rationale will be embraced by courts hearing cases involving contracts to make or not to revoke a will is something the scant and conficting body of jurisprudence in that area does not yet reveal. The most salient message from those cases at the present time is a notable ambivalence about the extent to which family protection statutes should be pressed into the service of promoting marriage for marriage’s sake. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 155
Firearms and Physicians: Finding a Duty to Discuss
Elisabeth J. Ryan*
* Elisabeth J. Ryan, JD, MPH is a Boston attorney specializing in frearms law and frearms violence as a public health issue. She earned her BA in Urban Studies from Columbia University, her JD from Boston College Law School, and her MPH in Health Policy from the Harvard University T.H. Chan School of Public Health. She has worked as a public defender, a civil legal aid attorney, and as the Deputy General Counsel for the Massachusetts Executive Ofce of Public Safety and Security. She created and teaches Firearms Law and the Second Amendment at both Harvard Extension School and the UMass Boston Honors College. But she encourages everyone to remember that sometimes your work is far more important than your job. 156 Ryan
Table of Contents I. Introduction ...... 157 II. Firearm violence as a public health issue ...... 158 III. Suicide and firearms ...... 165 IV. Homicide and firearms ...... 167 V. A brief history of firearm laws in the United States ...... 169 A. Some existing legal duties physicians owe to patients ....172 B. Some existing legal duties physicians owe to third-parties ...... 175 VI. Physicians and firearms ...... 179 A. The right to counsel about firearms: Wollschlaeger v. Governor of Florida ...... 179 B. So there’s a right to talk about firearms, but is there a duty? ...... 184 1. Physicians, suicidal patients, and firearms ...... 185 2. Pediatricians and firearms ...... 190 3. Primary care and firearms ...... 192 4. Potentially dangerous patients and firearms ...... 192 VII. Conclusion...... 193 VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 157
“[S]ome moral obligations do not translate easily into legal obligations . . .”1
I. Introduction In 2011, Florida enacted a statute known as the Firearms Owners’ Privacy Act,2 which quickly became known nationwide as simply the “Docs vs. Glocks” law.3 This law essentially forbade doctors from asking their patients about gun ownership, recording information about guns in the home, and “unnecessarily harassing” patients for their gun ownership. The penalty was potential medical license sanctions and a fne up to $10,000. Championed by the National Rife Association (NRA) and the state of Florida as protecting Second Amendment rights,4 the law set of a nationwide debate about the free speech rights of physicians,5 the role the medical community plays in the fght against gun violence,6 and the rights of patients to keep the exercise of their Second Amendment rights private.7 Several Florida doctors challenged the law almost immediately, claiming that it infringed not only on their right to speak with patients, but on the rights of patients to hear that speech.8
1 Logarta v. Gustafson, 998 F. Supp. 998, 1001 (E.D. Wis. 1998). 2 H.R. 155, 2011 Leg. (Fla. 2011), https://www.fsenate.gov/Session/ Bill/2011/155/BillText/er/PDF. 3 See Dahlia Lithwick & Sonja West, The Absurd Logic Behind Florida’s Docs vs. Glocks Law, Slate (Jan. 8, 2016, 3:45 PM), http://www.slate.com/articles/ news_and_politics/jurisprudence/2016/01/forida_s_docs_vs_glocks_bans_ doctors_from_discussing_guns.html. 4 See Stephanie Francis Ward, First and Second Amendments Square of in ‘Docs v. Glocks’ Case Before en banc 11th Circuit, A.B.A. J. (June 20, 2016, 4:20 PM), http://www.abajournal.com/news/article/frst_and_second_amendments_ square_of_in_docs_v._glocks_case_before_en_ban. 5 See, e.g., Wendy E. Parmet et al., Wollschlaeger v. Governor of Florida – The First Amendment, Physicians Speech, and Firearm Safety, 374 New Eng. J. Med. 2304 (June 2016). 6 See, e.g., Mike Weisser, Doctors Are Getting More Engaged in the Gun Violence Debate, but It’s Not Rocket Science, Huffington Post (Jan. 9, 2018, 10:59 AM), https://www.huffingtonpost.com/entry/gun-violence-research-doctors_ us_5a54e016e4b003133eccac90. 7 See Joseph Greenlee, “Docs vs. Glocks” and the Firearm Owners’ Privacy Act, Federalist Soc’y (Apr. 5, 2016), https://fedsoc.org/commentary/blog- posts/docs-vs-glocks-and-the-frearm-owners-privacy-act. 8 Complaint at 2–4, Wollschlaeger v. Farmer, 880 F. Supp. 2d 1251 (S.D. Fla. 2012) (No. 11 Civ. 22026). 158 Ryan
While the ensuing procedural history of Wollschlaeger v. Governor of Florida was complex to say the least, the full Eleventh Circuit Court of Appeals ultimately struck down most of the law as a violation of the First Amendment in 2017.9 Though the ruling technically applies only within the Eleventh Circuit, the decision (which Florida wisely declined to appeal to the United States Supreme Court10) had social and legal ramifcations far beyond that region. The message is clear: physicians have a right to talk to their patients about frearms. The next logical step is to ask whether physicians have a duty to do so. Quite simply, no currently articulated duty exists for physicians to warn their patients about the dangers of frearms or to ask about the presence of frearms in the home. This article argues, however, that such a duty can easily be read into many of the other existing duties that physicians have, including the basic duty of care. However, imposing such a duty would not be the best way to address or reduce gun violence and may even harm that efort. The legal community and the public health community need the alliance of the medical community in order to best reduce the deaths and injuries attributable to frearm violence. The best way to accomplish this goal is not by forcing a newly articulated legal obligation on physicians, but by joining with them to promote the discussion of frearms as an integral part of their work.
II. Firearm violence as a public health issue In the U.S., frearm violence killed more than 36,000 people in 2015,11 which is more than twice as many as brain cancer killed,12
9 Wollschlaeger v. Governor, 848 F.3d 1293, 1323 (11th Cir. 2017); see also Ben Guarino, Appeals Court Strikes Down Florida ‘Docs v. Glocks’ Law That Barred Physicians from Asking About Gun Ownership, Wash. Post (Feb. 17, 2017), https://www.washingtonpost.com/news/morning-mix/wp/2017/02/17/ appeals-court-strikes-down-fla-docs-v-glocks-law-that-barred-physicians- from-asking-about-gun-ownership/?utm_term=.4c9611705b9a. 10 See Dara Kam, ‘Docs vs. Glocks’ Legal Battle Ends, Tallahassee Democrat (June 12, 2017), https://www.tallahassee.com/story/news/2017/06/12/ docs-vs-glocks-legal-battle-ends/388627001/. 11 Nat’l Ctr. for Health Statistics, All Injuries, Ctrs. for Disease Control and Prevention, https://www.cdc.gov/nchs/fastats/injury.htm (last updated May 3, 2017). 12 United States Cancer Statistics: Data Visualizations, Ctrs. for Disease Control and Prevention, https://gis.cdc.gov/grasp/USCS/DataViz. html (set “Cancer Type” to “Brain and Other Nervous System”) (last visited Oct. 2, 2018). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 159 and slightly more than motor vehicle incidents killed that same year.13 Of those 36,000 deaths due to frearms, 22,018—more than 60%—were suicides.14 About 13,000 (36%) were homicides,15 and the remaining 1,000 (3%) were due to unintentional incidents. More than half of all unintentional fatal frearm victims are under the age of 25.16 Firearm-related deaths are the third leading cause of death for children ages 1 to 17.17 People who live in homes with frearms are also signifcantly more likely to die by homicide, suicide, or accidental injury.18 Firearms further accounted for more than 116,000 additional non-fatal injuries in 2016,19 though that number may be a signifcant underestimate, given that nonfatal gun violence is much trickier to measure than deaths.20 Nevertheless, that represents an increase of almost 30,000 nonfatal frearms injuries from just one year prior
13 Nat’l Ctr. for Health Statistics, supra note 11. 14 Nat’l Ctr. for Health Statistics, Suicide and Self-Inficted Injury, Ctrs. for Disease Control and Prevention (Mar. 17, 2017), https://www.cdc. gov/nchs/fastats/suicide.htm. 15 Nat’l Ctr. for Health Statistics, Assault or Homicide, Ctrs. for Disease Control and Prevention, https://www.cdc.gov/nchs/fastats/homicide. htm (last updated Mar. 17, 2017). 16 David Hemenway, Private Guns Public Health 27 (2004). 17 Katherine Fowler et al., Childhood Firearm Injuries in the United States, 140 J. Am. Acad. Pediatrics 1, 2 (2017). 18 See Alexander McCourt & Jon S. Vernick, Law, Ethics, and Conversations Between Physicians and Patients about Firearms in the Home, 20 JAMA Ethics 69, 69 (2018); Andrew Anglemyer, et al., The Accessibility of Firearms and Risk for Suicide and Homicide Victimization Among Household Members, 160 Annals Internal Med. 101, 105 (2014) (“All but 1 study (20) found signifcantly higher odds of suicide among participants who had frearm access than among those who did not, with ORs ranging from 1.38 to 10.38.”). 19 Nonfatal Injury Reports, 2000-2016, Ctrs. for Disease Control and Prevention, https://webappa.cdc.gov/sasweb/ncipc/nfrates.html (Set “Year Range” to “Years 2001-2106;” set “Intent of Injury”to “All Intents;” set “Cause of Injury” to “Firearm;” set “Sex” to “Both Sexes;” set “Disposition” to “All Cases;” set “Year(s) of Report” to “2016 to 2016;” click “Submit Request”) (last updated July 10, 2018). 20 David S. Bernstein, Americans Don’t Really Understand Gun Violence, The Atlantic (Dec. 14, 2017), https://www.theatlantic.com/politics/ archive/2017/12/guns-nonfatal-shooting-newtown-las-vegas/548372/. 160 Ryan in 2015,21 the largest increase in more than a decade.22 Nonfatal gunshot wounds can be devastating and severely disabling, not only physically and psychologically, but also fnancially.23 One woman who survived being shot with a high-powered rife at a 2017 Las Vegas music festival—where 58 others were killed—endured nine surgeries to repair injuries to her lungs, stomach, spleen, and liver, all within fve months.24 Few survive similar attacks, though. As a radiologist who helped treat victims of the February 2018 massacre at Marjory Stoneman Douglas High School in Florida noted, “In a typical handgun injury . . . a bullet leaves a laceration through an organ such as the liver. To a radiologist, it appears as a linear, thin, gray bullet track through the organ. There may be bleeding and some bullet fragments. . . . The organ [of a student shot by an AR-15] looked like an overripe melon smashed by a sledgehammer, with extensive bleeding. There was nothing left to repair, and utterly, devastatingly, nothing that could be done to fx the problem. The injury was fatal.”25 Exposure to violence often causes extensive psychological trauma, leading to depression, anger, anxiety, dissociation, and posttraumatic stress.26 That surviving Las Vegas victim continues
21 Web-Based Injury Statistics Query and Reporting Sys., Nonfatal Injury Reports, 2000-2016, Ctr. for Disease Control and Prevention, https:// webappa.cdc.gov/sasweb/ncipc/nfrates.html (last updated July 10, 2018) (choose Years 2001-2106, All Intents, Firearm, Both Sexes, All Cases, 2015 to 2015). 22 Gun Violence Increased by 28% in 2016, According to CDC, Giffords Law Ctr. to Prevent Gun Violence, http://lawcenter.gifords.org/gun-violence- increased-by-28-in-2016-according-to-cdc/ (last updated May 7, 2018). 23 Sarabeth Spitzer et al., Costs and Financial Burden of Initial Hospitalizations for Firearm Injuries in the United States, 2006-2014, 107 Am. J. Pub. Health 770, 774 (2017) (“[F]irearm-related injuries place a particular burden on governmental payers and the poor.”). 24 Sarah Kaplan, Las Vegas Fund Begins Payouts to Shooting Victims, but one Long- Hospitalized Survivor isn’t Among Them, Wash. Post (Mar. 12, 2018), https://www.washingtonpost.com/news/post-nation/wp/2018/03/12/las- vegas-fund-begins-payouts-to-shooting-victims-but-one-long-hospitalized- survivor-isnt-among-them/?utm_term=.c2165ca49c2b; Meghan Keneally, 47 guns, loaded high capacity magazines found in Vegas shooter’s hotel suite and Nevada home, ABC News (Oct. 4, 2017), https://abcnews.go.com/US/guns-loaded- high-capacity-magazines-found-vegas-shooters/story?id=50228093. 25 Heather Sher, What I Saw Treating the Victims From Parkland Should Change the Debate on Guns, The Atlantic (Feb. 22, 2018), https://www.theatlantic. com/politics/archive/2018/02/what-i-saw-treating-the-victims-from- parkland-should-change-the-debate-on-guns/553937/. 26 Mark I. Singer et al., Adolescents’ Exposure to Violence and Associated Symptoms of VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 161 to sufer “crushing anxiety caused by the trauma of the shooting and her excruciating recovery.”27 Even those who are not physically harmed by gun violence can still be psychologically traumatized by it, such as children who witness mass shootings28 and people who live in high-violence neighborhoods.29 Gun violence further takes a devastating, though generally less measurable, toll on communities and families,30 as well as the economy.31 In recent years, nearly 1,300 children per year died from frearms in the U.S.; emergency departments treated almost 6,000 more for non-fatal frearm injuries.32 While both unintentional and homicide frearm deaths of children ages 0 to 17 have declined since
Psychological Trauma, 273 JAMA 477, 481 (1995). 27 Sarah Kaplan, Las Vegas fund begins payouts to shooting victims, but one long- hospitalized survivor isn’t among them, Wash. Post (Mar. 12, 2018), https:// www.washingtonpost.com/news/post-nation/wp/2018/03/12/las-vegas- fund-begins-payouts-to-shooting-victims-but-one-long-hospitalized- survivor-isnt-among-them/?utm_term=.c2165ca49c2b. 28 Phil Glaewitz, After Shooting, ‘Honor How Kids Want to Deal With Their Feelings,’ Kaiser Health News (Feb. 22, 2018), https://khn.org/news/ after-shooting-honor-how-kids-want-to-deal-with-their-feelings/; see also Sarah Lowe et al., Mental Health Consequences of Mass Shootings, 18 Trauma, Violence, & Abuse 62 (2015). 29 Steven Ross Johnson, Gun Violence Survivors and Witnesses Could Face Lifetime of Trauma and Bad Health, Modern Healthcare (Nov. 5, 2016), https:// www.modernhealthcare.com/article/20161105/MAGAZINE/311059989; see also Devin Carey et al., Exposure to Community Violence and Social Maladjustment Among Urban African American Youth, 37 J. of Adolescence 1161 (2014); Ctr. for Inj. Res. and Prevention, School Shootings, Child. Hosp. of Phila., https://injury.research.chop.edu/violence-prevention-initiative/types- violence-involving-youth/school-shootings#.W5wNiKZKhPZ (last visited Jan. 19, 2019); Fran H. Norris, Impact of Mass Shootings on Survivors, Families, and Communities, 18 PTSD Res. Q., Summer 2007, at 1; Ask Elklit & Sessel Kurdahl, The Psychological Reactions After Witnessing a Killing in Public in a Danish High School, 4 Eur. J. Psychotraumatology, Jan 2013, at 1. 30 See Julie Collins & Emily Swoveland, The Impact of Gun Violence on Children, Families, & Communities, Child Welfare League of America, https:// www.cwla.org/the-impact-of-gun-violence-on-children-families-communities (last visited May 23, 2018); Ryan Connelly Holmes, Chicago’s gun violence crisis is also a mental health crisis, PBS (Aug. 22, 2017), https://www.pbs.org/ newshour/health/chicagos-gun-violence-crisis-also-mental-health-crisis; Richard Conway, Go Inside the Lives of Families Afected by Gun Violence, Time (Jan. 22, 2015), http://time.com/3669792/gun-violence-chicago-families/. 31 See, e.g., Yasemin Irvin Erikson et al., The Efects of Gun Violence on Local Economies, Urban Institute (Nov. 2016), https://www.urban.org/research/ publication/efect-gun-violence-local-economies/view/full_report. 32 Katherine Fowler et al., Childhood Firearm Injuries in the United States, 140 Pediatrics 1, 3 (Apr. 4, 2017). 162 Ryan
2002, suicides by frearm among this age group frst declined, but then increased sharply, beginning in 2007.33 Firearm-related deaths account for the third leading cause of mortality among children ages 1 to 17 in the U.S., representing more deaths than congenital abnormalities, heart disease, the fu, pneumonia, chronic respiratory disease, and cerebrovascular causes.34 Approximately 82% of children who die by frearms are boys.35 In recent years, black children have the highest overall frearm mortality rate and homicide mortality rate.36 White and American Indian children have the highest frearm suicide mortality rate.37 And while the frearm homicide rates for children have been declining since 2007, child frearm suicide rates have increased by a staggering 60% from 2007 to 2014.38 Unintentional child deaths by frearms have also been declining.39 Children playing with a gun is the most common reason for such deaths,40 and children as young as three years old may be strong enough to pull the trigger on a frearm.41 Until the late 20th century, “gun assaults were seen almost exclusively as a criminal justice problem, gun suicides as a mental health problem, and unintentional gunshot wounds as a safety issue.”42 In 1979, the U.S. Surgeon General published a report called “Healthy People,”43 which identifed both suicide and homicide as “[i]mportant,” though preventable, problems in American health. The report even stated that “[e]asy access to frearms appears to be
33 Id. at 4–5. 34 Id. at 2. 35 Id. at 4. 36 Id. 37 Id. 38 Id. at 4–6. 39 Id. 40 Id. at 8; see also Nicholas Bakalar, A Dire Weekly Total for the U.S.: 25 Children Killed by Guns, N.Y. Times (June 19, 2017), https://www.nytimes.com/2017/06/19/ health/guns-children-cdc-us-frearms.html. 41 Nat’l Physicians All. & Law Ctr. to Prevent Gun Violence, Gun Safety & Public Health: Policy Recommendations for a More Secure America 7 (2013), http://npalliance.org/wp-content/uploads/Gun_ Safety_Public_Health_Joint_Report-092513.pdf (citing S.M. Naureckas et al., Children’s and Women’s Ability to Fire Handguns, 149 Archives of Pediatric & Adolescent Med. 1318 (1995)). 42 David Hemenway, Private Guns Public Health 8 (2004). 43 U.S. Dep’t of Health, Educ., & Welfare, Healthy People: The Surgeon General’s Report on Health Promotion and Disease Prevention, ch. 5, at 8 (1979). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 163 the one factor with a striking relationship to murder,” highlighting that both the U.S. homicide rate and the sale of frearms rose steeply from 1960 to 1974.44 This report appears to be the frst major, nationwide recognition of violence, and gun violence in particular, as a public health issue.45 In the years since then, this notion of gun violence as a public health issue has spread widely but has been continually stymied politically. In the mid-1980s, the Centers for Disease Control and Prevention (CDC) established an injury-control division,46 which included the study of frearm violence as the second leading cause of injuries in the U.S. In 1993, the CDC provided funding for a study published in the New England Journal of Medicine entitled, “Gun Ownership as a Risk Factor for Homicide in the Home.”47 This study concluded that “[r]ather than confer protection, guns kept in the home are associated with an increase in the risk of homicide by a family member or intimate acquaintance.”48 The NRA seized on this article as government promotion of gun-control and campaigned to eliminate the CDC National Center for Injury Prevention.49 Congress did not get rid of the injury center entirely, but in 1996, it did take $2.6 million from the CDC budget—the exact amount that had previously been allocated for gun violence research—and earmarked it instead for traumatic brain injury research.50 Congress also inserted a budget clause, authored by Republican Congressman Jay Dickey from Arkansas, stating, “[N]one of the funds made available for injury prevention and control at the Centers for Disease Control and Prevention may be used to advocate or promote gun control.”51
44 Id. at ch. 5, 14–15. 45 See Linda L. Dhalberg & James A. Mercy, Ctr. for Disease Control and Prevention, The History of Violence as a Public Health Issue 2 (2009), https://www.cdc.gov/violenceprevention/pdf/history_ violence-a.pdf. 46 Hemenway, supra note 42, at xi. 47 Christine Jamieson, Gun Violence Research: History of the Federal Funding Freeze, Am. Psychological Ass’n (Feb. 2013), http://www.apa.org/science/ about/psa/2013/02/gun-violence.aspx. 48 Arthur L. Kellermann et al., Gun Ownership as a Risk Factor for Homicide in the Home, 329 New Eng. J. Med. 1084 (1993). 49 Jamieson, supra note 47. 50 Id.; Julie Rovner, US Budget Cut May End CDC Gun-Violence Research, 348 The Lancet 1025 (1996). 51 Act of Sept. 30, 1996, Pub. L. No. 104-208, Title II, 110 Stat. 3009, 244 (1996) (making omnibus consolidated appropriations for the fscal year ending Sept. 30, 1997); Jamieson, supra note 47. 164 Ryan
This language, which became known as the “Dickey Amendment,” has remained in every federal budget since its original inclusion.52 While it does not outright forbid the CDC from studying or funding gun violence research, no one within the CDC was willing to risk losing more money or further incurring the wrath of the NRA to conduct such research.53 Federal gun violence research and funding efectively ceased entirely after the Dickey Amendment.54 Advocacy and professional groups tried, in vain, to remove the Dickey Amendment language from the annual federal budget.55 In 2012, retired Congressman Dickey even expressed regret at the outcome of his namesake budget clause. He co-authored a Washington Post op-ed, stating that “scientifc research should be conducted into preventing frearm injuries and that ways to prevent frearm deaths can be found without encroaching on the rights of legitimate gun owners.”56 Soon after, in 2013, President Barack Obama issued an ofcial memo to the Secretary of the Department of Health and Human Services (HHS)—which oversees the CDC—instructing HHS to “conduct or sponsor research into the causes of gun violence and the ways to prevent it.”57 In response, the National Institutes of Health (NIH) began a program to fund gun violence research, which provided more than $11 million in funds over three years.58 Then, in 2017 and with no explanation, NIH stopped accepting proposals and stopped funding most gun-related studies.59 Even though Congress was under political pressure to enact stricter gun control legislation,60 it again refused to eliminate the
52 Allen Rostron, The Dickey Amendment on Federal Funding for Research on Gun Violence: A Legal Dissection, 108 Am. J. Pub. Health 865, 866 (2018). 53 Jamieson, supra note 47. 54 Am. Med. Ass’n, Report of the Board of Trustees 1 (2017), https:// www.ama-assn.org/sites/default/fles/media-browser/public/hod/i17-bot03. pdf. 55 See, e.g., id. 56 Jay Dickey & Mark Rosenberg, We Won’t Know the Cause of Gun Violence Until We Look for It, Wash. Post (July 27, 2012), https://www.washingtonpost. com/opinions/we-wont-know-the-cause-of-gun-violence-until-we-look-for- it/2012/07/27/gJQAPfenEX_story.html?utm_term=.99d6875355f8. 57 Memorandum on Engaging in Public Health Research on the Causes and Prevention of Gun Violence, 78 Fed. Reg. 4295 (Jan. 16, 2013), https://www. gpo.gov/fdsys/pkg/FR-2013-01-22/pdf/2013-01272.pdf. 58 Meredith Wadman, NIH Quietly Shelves Gun Research Program, Sci. (Sept. 13, 2017, 12:13 PM), http://www.sciencemag.org/news/2017/09/nih-quietly- shelves-gun-research-program. 59 See id. 60 Sheryl Gay Stolberg et al., Is This the Moment for Gun Control? A Gridlocked VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 165
Dickey Amendment language in the 2018 omnibus appropriations bill.61 It did, however, insert some language into the accompanying “guide” provided to HHS: “While appropriations language prohibits the CDC and other agencies from using appropriated funding to advocate or promote gun control, the Secretary of Health and Human Services has stated the CDC has the authority to conduct research on the causes of gun violence.”62 This language does not create any new legal authorization, but it does represent a (tiny) step toward recognizing gun violence as a public health issue. The bill did not include any funding,63 however, and that dearth means the agency still (as of May 2018) has not initiated any actual frearms research.64 Physicians see the efects gun violence—be it from intentional assault, unintentional injury, or suicide attempt—on the bodies, minds, families, and communities of patients. Even though they address it on a patient-by-patient basis, physicians constitute an integral part of a larger public health approach to gun violence.65 Key to the public health approach is the notion that “prevention is preferable to treatment.”66 Because people in homes with guns are at an increased risk of dying by homicide, suicides, or unintentional gun injury, physicians occupy one of the most crucial spaces in terms of accomplishing prevention.
III. Suicide and firearms When compared with other industrialized countries, the
Congress Is Under Pressure, N.Y. Times (Feb. 25, 2018), https://www.nytimes. com/2018/02/25/us/politics/gun-control-congress-governors.html. 61 Consolidated Appropriations Act of 2018, Pub. L. No. 114-141, H.R. 1625- 389, § 210 (2018). 62 115th Cong., Memorandum to Accompany Consolidated Appropriations Act of 2018 to Division H – Dep’ts of Labor, Health and Human Servs., and Educ., and Related Agencies 23 (2018), https://docs.house.gov/billsthisweek/20180319/DIV%20H%20 LABORHHS%20SOM%20FY18%20OMNI.OCR.pdf. 63 Nell Greenfeldboyce, Spending Bill Lets CDC Study Gun Violence; But Researchers Are Skeptical It Will Help, Nat’l Pub. Radio (Mar. 23, 2018, 12:17 PM), https://www.npr.org/sections/health-shots/2018/03/23/596413510/ proposed-budget-allows-cdc-to-study-gun-violence-researchers-skeptical. 64 See Dan Diamond, CDC ‘Ban’ Is Gone, But Firearm Research Is Still Lacking, Politico (May 21, 2018, 10:00 AM), https://www.politico.com/newsletters/ politico-pulse/2018/05/21/cdc-ban-is-gone-but-firearm-research-is-still- lacking-224062. 65 See David Hemenway, The Public Health Approach to Reducing Firearm Injury and Violence, 17 Stan. L. & Pol’y Rev. 635, 644, 649 (2006). 66 See id. at 649. 166 Ryan suicide rate in the U.S. is roughly in the middle,67 but the U.S. suicide rate using frearms is 10 times more than the average of other countries.68 Shifting the usual psychologically-focused inquiry from why a person attempts or completes suicide69 has led to a promising public health focus that instead asks how people attempt and complete suicide.70 “Intent matters, but so does method, because the method by which one attempts suicide has a great deal to do with whether one lives or dies.”71 Only one percent of suicide attempts are with frearms, yet more than half of all suicide deaths are from frearms.72 Attempted suicides using a frearm are also more than 90% fatal, compared to 35% from jumping, and 2% percent from poisoning.73 More people kill themselves with guns in the U.S. “than with all other intentional means combined, including hanging, poisoning/ overdose, jumping, and cutting.”74 One of the single most signifcant risk factors for suicide completion is the presence of a frearm in the home.75 Gun owners do not have a higher prevalence of mental health issues, nor do they have higher rates of suicide ideation.76 Rather, when gun owners— as well as their spouses and children—attempt suicide, they do so with a gun.77 In the states with the highest levels of household frearm ownership, almost twice as many people died by suicide compared to the states with the lowest levels of frearm ownership.78
67 David Hemenway, Private Guns, Public Health 37 (2004). 68 Id. 69 See, e.g., Todd B. Kashdan, Why Do People Kill Themselves? New Warning Signs, Psychol. Today (May 15, 2014), https://www.psychologytoday.com/us/ blog/curious/201405/why-do-people-kill-themselves-new-warning-signs. 70 Means Matter, Harv. T.H. Chan Sch. of Pub. Health (2018), https:// www.hsph.harvard.edu/means-matter/ (last visited Oct. 2, 2018). 71 Madeline Drexler, Guns & Suicide: The Hidden Toll, Harv. Pub. Health, https://www.hsph.harvard.edu/magazine/magazine_article/guns-suicide/ (last visited Oct. 2, 2018). 72 Catherine Barber et al., How Physicians Can Reduce Suicide – Without Changing Anyone’s Mental Health, 129 Am. J. Med. 1016, 1016 (2016). 73 Nat’l Physicians All. & Law Ctr to Prevent Gun Violence, supra note 41, at 4 (citing Matthew Miller et al., The Epidemiology of Case Fatality Rates for Suicide in the Northeast, 43 Annals Emergency Med. 723, 726 (2004)). 74 Drexler, supra note 71. 75 Matthew Miller et al., Household Firearm Ownership and Rates of Suicide Across the 50 United States, 62 J. of Trauma: Injury, Infection, & Critical Care 1029 (2007); Barber et al., supra note 72. 76 Barber et al., supra note 72. 77 Id. 78 Miller et al., supra note 75, at 1031 (“Almost twice as many individuals VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 167
The presence of a gun in the home was associated with a risk of suicide 4.8 times higher than the risk of suicide in a home without a gun, even after controlling for factors such as living alone, taking prescribed psychiatric medications, having a history of arrest, using drugs/alcohol, and not graduating from high school.79 People who attempt suicide often do so very impulsively. In one study of people who survived a suicide attempt, “a startling 24 percent said less than 5 minutes” had passed “between when they decided to take their lives and when they actually made the attempt.”80 Only 14% of people who attempted suicide did so more than eight hours after making the decision.81 Underscoring this impulsivity, about 90% of people who survive a suicide attempt do not go on to later die by suicide,82 dispelling the myth that someone who wants to die by suicide will fnd a way to do it, whether a frearm is available or not.83 “A central tenet of public health is that environment shapes individual behavior . . . When widely used lethal means are made less available or less deadly, suicide rates by that method decline, as do suicide rates overall.”84 As discussed below, physicians play a crucial role in assessing suicide risk and, given that the presence of a frearm contributes so heavily to the risk of death by suicide, incorporating inquiries about frearms could very well be part of their existing duty of care.
IV. Homicide and firearms Gun availability is not just correlated with higher rates of suicide, but with higher rates of homicide as well.85 The U.S., where
completed suicide in the 15 states with the highest levels of household frearm ownership . . . compared with the 6 states with the lowest levels of household frearm ownership.”); see also Barber et al., supra note 72. 79 Arthur L. Kellerman et al., Suicide in the Home in Relation to Gun Ownership, 327 New Eng. J. Med. 467, 467 (1992). 80 Drexler, supra note 71. 81 Id. 82 Nat’l Physicians All. & Law Ctr. to Prevent Gun Violence, supra note 41, at 4 (citing Matthew Miller et al., Suicide Mortality in the United States: The Importance of Attending to Method in Understanding Population Level Disparities in the Burden of Suicide, 33 Ann. Rev. Pub. Health 393 (2012)). 83 Myths About Suicide, Tenn. Suicide Prevention Network, http://tspn. org/myths-about-suicide (last visited Oct. 2, 2018). 84 Drexler, supra note 71. 85 Lisa M. Hepburn & David Hemenway, Firearm availability and homicide: A review of the literature, 9 Aggression & Violent Behav. 417 (2004). 168 Ryan fve percent of the world’s population owns as much as 50% of the world’s frearms,86 has a homicide rate seven times higher than other developed countries.87 Its homicide rate by frearms is a staggering 25.2 times that of other comparable countries.88 A common refrain from the NRA and other pro-gun lobbies says that “[t]he only way to stop a bad guy with a gun is a good guy with a gun.”89 The NRA touts anecdotes about “armed citizen[s]” thwarting robbers and home invaders,90 championing the image that more guns equals less crime. But, the data shows otherwise. Not only does no correlation exist between gun ownership rates and stranger homicide rates (in other words, more guns do not reduce stranger homicides), but a signifcant correlation exists between gun ownership rates and non-stranger homicide rates. This data indicates that more guns lead to more homicides of family, friends, and acquaintances.91 Access to and availability of frearms in the U.S. particularly increases the lethality of intimate partner violence.92 Current or former intimate partners murder women in the U.S. nine times more often than strangers.93 “Domestic violence incidents involving frearms are twelve times more likely to result in a death compared to non-frearm abuse incidents.”94 Though the overall rate of homicide by frearms is lower for women than for men (1.6 per 100,000 people for women, versus 7.0 per 100,000 people for men), the presence of a gun in the home constitutes one of the major risk factors that a
86 Elspeth Reeve, Some Uncomfortable Numbers About Guns in America, The Atlantic (Dec. 17, 2012), https://www.theatlantic.com/politics/ archive/2012/12/guns-in-america-statistics/320409/. 87 Spitzer et al., supra note 23, at 770. 88 Id. 89 Emily Rupertus, A Good Guy with a Gun, Nat’l Rifle Ass’n (July 20, 2016), https://www.nrablog.com/articles/2016/7/a-good-guy-with-a-gun/. 90 Id. 91 Michael Siegel et al., The Relationship Between Gun Ownership and Firearm Homicide Rates in the United States, 1981-2010, 103 Am. J. Pub. Health 2098, 2103 (2013). 92 Jacquelyn C. Campbell et al., Intimate Partner Homicide: Review and Implications of Research and Policy, 8 Trauma, Violence, & Abuse 246, 255 (2007). 93 Id. at 246. 94 Nat’l Physicians All. & Law Ctr. to Prevent Gun Violence, Gun Safety & Public Health: Policy Recommendations for a More Secure America 4 (2013), http://npalliance.org/wp-content/uploads/ Gun_Safety_Public_Health_Joint_Report-092513.pdf (citing Shannon Frattaroli & Jon S. Vernick, Separating Batterers and Guns: A Review and Analysis of Gun Removal Laws in 50 States, 30 Evaluation Rev. 296, 297 (2006)). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 169 woman will be killed by either an intimate partner or another non- stranger.95 More than 40% of women killed by homicide are killed by intimate partners; almost 90% are killed by non-strangers.96
V. A brief history of firearm laws in the United States The Second Amendment to the U.S. Constitution states, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”97 Virtually no commentary exists specifc to the Second Amendment from the time of the Bill of Rights ratifcation in 1791.98 Prior to the 20th century, gun regulations were almost entirely locally-based and the Second Amendment remained essentially irrelevant.99 Throughout the 20th century though, the U.S. passed several major frearm-related laws, including the National Firearms Act (NFA) in 1934. This law, which was at least partially a response to likes of Al Capone and other gangsters trading in illegal alcohol and utilizing “Tommy Guns” to target their enemies,100 created the frst frearms licensing scheme and the frst tax on the interstate sale of certain weapons, such as sawed-of shotguns.101 By the 1960s, the number of guns in American civilian hands had skyrocketed and the number of imported handguns had exploded from 67,000 per year in 1955 to over one million in 1968.102 The Gun Control Act of 1968 (GCA), partially fueled by the fear of groups like the Black Panthers, the increasing “race riots,” and the assassination of Martin
95 Campbell et al., supra note 92, at 255. 96 Michael B. Siegel & Emily F. Rothman, Firearm Ownership and the Murder of Women in the United States: Evidence That the State-Level Firearm Ownership Rate Is Associated with the Nonstranger Femicide Rate, 3 Violence & Gender 20, 21, 24 (2016). 97 U.S. Const. amend. II. 98 Nicholas J. Johnson et al., Firearms Law and the Second Amendment: Regulation, Rights, and Policy 3, 218–19 (1st ed. 2012). 99 See Adam Winkler, Gun Fight: The Battle Over the Right to Bear Arms in America 3, 95–115 (2011); see also Johnson et al., supra note 98, at 218–19. 100 NPR Staf, Prohibition-Era Gang Violence Spurred Congress To Pass First Gun Law, Nat’l Pub. Radio (June 30, 2016), https://www.npr.org/2016/06/30/484215890/ prohibition-era-gang-violence-spurred-congress-to-pass-first-gun-law; Winkler, supra note 99, at 203. 101 Winkler, supra note 99, at 203.The tax was $200 in 1934 and remains $200 today. 102 Id. at 250. 170 Ryan
Luther King Jr.,103 prohibited gun shipments across state lines to anyone other than a federally licensed dealer. It also created a ban on gun sales to “prohibited persons,” such as felons, individuals with mental illness, people with substance use disorders, and minors.104 In 1986, the Firearm Owners Protection Act loosened many provisions of the GCA and also explicitly prohibited any sort of centralized government gun registry.105 In 1981, John Hinckley Jr. attempted to assassinate President Ronald Reagan and, in doing so, also shot Press Secretary James Brady in the head; Brady survived, but was permanently paralyzed.106 That incident marks the real birth of the modern gun debate. Sarah Brady, Secretary Brady’s wife, became an outspoken advocate of gun control, and particularly of restricting the access of people with mental illness to frearms.107 In 1993, she was instrumental in passing the “Brady Bill,” which included a mandate to create the National Instant Criminal Background Check System (NICS), which all federally licensed frearms dealers utilize to check a buyer’s records for potential disqualifers in a matter of minutes.108 Firearm laws in America entered a new era in 2008, when the U.S. Supreme Court decided District of Columbia v. Heller,109 the single most important frearms law decision in American history.110 In 1976, the District of Columbia city council passed a law that banned handguns from private possession and required long guns to be disassembled or secured with a trigger lock.111 Almost 30 years later, carefully-orchestrated litigation112 moved forward with deliberately
103 Winkler, supra note 99, at 249, 251; Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213 (1968). 104 Winkler, supra note 99, at 251. 105 18 U.S.C. § 926 (2012); 82 Stat. at 1213. 106 Winkler, supra note 99, at 69. 107 Id.; see also Jon Thurber, Sarah Brady, Longtime Advocate for Gun Control, Dies at 73, Wash. Post (Apr. 3, 2015), https://www.washingtonpost.com/ local/obituaries/sarah-brady-longtime-advocate-for-gun-control-dies-at- 73/2015/04/03/2f9cc2e0-da48-11e4-ba28-f2a685dc7f89_story.html?utm_ term=.3983dcac5b1f. 108 Winkler, supra note 99, at 69–71. 109 D.C. v. Heller, 554 U.S. 570 (2008). 110 See James Vicini, Americans Have Right to Guns Under Landmark Ruling, Reuters (June 26, 2008), https://www.reuters.com/article/us-usa- guns-court/americans-have-right-to-guns-under-landmark-ruling- idUSWBT00928420080626; see also Winkler, supra note 99. 111 Winkler, supra note 99, at 17. 112 Id. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 171 selected plaintif, Dick Heller. He was a security guard who was allowed to have a handgun while on the job, but not at home because of the ban.113 The case’s architects intended, from the outset, for the case to go all the way to the U.S. Supreme Court, with the aim of receiving an explicit ruling that the Second Amendment protected an individual right to bear arms, as opposed to a “collective,” or militia-only right.114 Though such a strategy risked getting an adverse decision that could derail the direction of gun rights for good, Justice Antonin Scalia wrote a majority opinion strongly in the plaintif’s favor, holding, “[T]he Second Amendment protects an individual right to possess frearms and . . . the city’s total ban on handguns, as well as its requirement that frearms in the home be kept nonfunctional even when necessary for self-defense, violated that right.”115 Importantly, however, the decision also contained the qualifer, “[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of frearms by felons and the mentally ill, or laws forbidding the carrying of frearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifcations on the commercial sale of arms.”116 Ultimately, Heller “validated a compromise position on guns. Individuals have a right to possess a gun for self-defense, but that right can and should be subject to some regulation in the interest of public safety.”117 Since 2008, no gun regulation has gained traction on the federal level, even after the massacre of 26 people (20 of them children) at a Newtown, Connecticut elementary school in 2012.118 In 2018, after a former student killed 17 people at his high school
113 Heller, 554 U.S. at 574–75. 114 Winkler, supra note 99, at 91–92. 115 Heller, 554 U.S. at 576 (citing Parker v. District of Columbia, 478 F.3d 370, 395, 399–401 (2007)) (lower court decision). 116 Id. at 626–27. 117 Winkler, supra note 99, at 294. 118 Ed O’Keefe & Philip Rucker, Gun-Control Overhaul Is Defeated in Senate, Wash. Post (Apr. 17, 2013), https://www.washingtonpost.com/politics/gun- control-overhaul-is-defeated-in-senate/2013/04/17/57eb028a-a77c-11e2- b029-8fb7e977ef71_story.html?utm_term=.1297752e18c1; Rebecca Shabad, Why More than 100 Gun Control Proposals in Congress Since 2011 Have Failed, CBS News (June 20, 2016), https://www.cbsnews.com/news/how-many-gun- control-proposals-have-been-ofered-since-2011/; Joshua Gillin, Congress Blocked Obama’s Call for New Gun Laws After Mass Shootings, Politifact (Jan. 6, 2017), https://www.politifact.com/truth-o-meter/article/2017/jan/06/ congress-blocked-obama-call-gun-control-mass-shoot/. 172 Ryan in Parkland, Florida, several of the teenage survivors managed to renew a push to institute several reforms.119 Despite initial support from President Donald Trump,120 nothing has come to fruition in Congress. Several states, however, including Vermont121 and the teenage activists’ home state of Florida,122 have passed additional frearm restrictions in the months after the massacre at Marjory Stoneman Douglas High School. Most frearm regulation, in fact, takes place at the state level.123 States cannot contradict federal law restrictions—such as minimum ages for handgun purchases124 or prohibitions on certain sales across state lines125—but states can either impose additional restrictions (within the bounds of the Second Amendment) or they can impose no restrictions beyond those at the federal level.126 The difering levels of regulations across states has created a confusing patchwork of laws where no cohesion exists.127
A. Some existing legal duties physicians owe to patients The notion that physicians have a multitude of legal obligations to patients dates back to ancient times.128 Even the Code
119 See Emanuella Grinberg & Steve Almasy, Students at town Hall to Washington, NRA: Guns are the Problem, Do Something, CNN (Feb. 22, 2018, 5:19 AM), https://www.cnn.com/2018/02/21/politics/cnn-town-hall-forida-shooting/ index.html. 120 See Matthew Nussbaum, White House: Trump Supports Stronger Background Checks for Gun Buys, Politico (Feb. 19, 2018, 9:41 AM), https://www.politico.com/ story/2018/02/19/trump-gun-control-417101. 121 See Jason Hanna & Lawrence Davidson, Vermont Governor Signs Sweeping Gun Control Measures, CNN (Apr. 11, 2018, 6:28 PM), https://www.cnn. com/2018/04/11/us/vermont-gun-control/index.html. 122 Maggie Astor, Florida Gun Bill: What’s in It, and What Isn’t, N.Y. Times (Mar. 8, 2018), https://www.nytimes.com/2018/03/08/us/forida-gun-bill.html. 123 See Leslie Shapiro et al., How Strictly Are Guns Regulated Where You Live?, Wash. Post (Feb. 20, 2018), https://www.washingtonpost.com/graphics/2017/ national/assault-weapons-laws/?utm_term=.dab20bcb282d. 124 18 U.S.C. § 922(b)(1) (2018); see U.S. Const. art. VI, cl. 2. 125 18 U.S.C. § 922(a)(5) (2018); see U.S. Const. art. VI, cl. 2. 126 See U.S. Const. art. VI, cl. 2; see also Emma Roller, Idaho Has Declared It Won’t Obey New Federal Gun Laws, The Atlantic (Mar. 25, 2014), https://www. theatlantic.com/politics/archive/2014/03/idaho-has-declared-it-wont-obey- new-federal-gun-laws/455652/. 127 See, e.g., Andrew Hay, Wafe House Shooting Shows Pitfalls in Patchwork of U.S. Gun Laws, Reuters (Apr. 26, 2018, 3:28 PM), https://www.reuters.com/ article/us-usa-tennessee-shooting-law/wafe-house-shooting-shows-pitfalls- in-patchwork-of-u-s-gun-laws-idUSKBN1HX36T. 128 Andrew A. Sandor, Legal Duties of Physicians, 74 Cal. Med. 385, 385 (1951). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 173 of Hammurabi (from around 2000 B.C.) contains an edict to the efect that if a patient died during an operation, the doctor’s hands would be cut of.129 This harsh idea that the physician “practiced at his peril and paid a penalty”130 pursuant to “absolute liability”131 evolved into the notion that a physician who “followed established treatments” remained free of liability, even if the patient was not cured or healed.132 This concept remains generally intact today. Physicians, most generally (and most importantly), must provide a patient with treatment using the degree of skill, care, and diligence of a reasonably competent physician under the same or similar circumstances.133 Failure to do so—either by an act or the omission of an act that deviates from acceptable norms and results in injury—could constitute grounds for medical malpractice, a relatively common legal claim in the U.S.134 Generally governed by state law, specifcs difer as to how plaintifs may initiate and proceed with medical malpractice claims, but the essence is the same: in order to establish negligence, a patient (or representative) plaintif must prove four elements: “(1) a professional duty owed to the patient; (2) breach of such duty; (3) injury caused by the breach; and (4) resulting damages.”135 The establishment of a patient-doctor relationship is vital to determining the existence of a duty of care; if no patient- doctor relationship exists, no such duty of care exists either.136 In the simplest terms, this patient-doctor relationship “exists when a physician serves a patient’s medical needs,” generally via mutual consent.137 This relationship usually begins as soon as the physician “afrmatively acts . . . by examining, diagnosing, treating, or agreeing
129 See id.; see also The Code of Hammurabi, The Avalon Project (L.W. King trans., 2008), http://avalon.law.yale.edu/ancient/hamframe.asp. 130 Sandor, supra note 128. 131 Id. 132 Id. 133 See What Is a Doctor’s Duty of Care?, FindLaw, http://injury.fndlaw.com/ medical-malpractice/what-is-actionable-medical-malpractice.html (last visited Oct. 2, 2018). 134 B. Sonny Bal, An Introduction to Medical Malpractice in the United States, 467 Clinical Orthopaedics & Related Res. 339, 342 (2009). 135 Id. 136 Carol A. Kelly & Philip E. Murray, Jr., The Physician’s Legal Duty to Non-Patients, Crico (June 1, 2008), https://www.rmf.harvard.edu/Clinician-Resources/ Article/2008/Insight-The-Physicians-Legal-Duty-to-Non-Patients. 137 Code of Medical Ethics § 1.1.1 (Am. Med. Ass’n 2018). 174 Ryan to do so.”138 Once that physician-patient relationship exists, the doctor has the duty to not abandon the patient; that is, he or she cannot terminate the relationship “at an unreasonable time and without giving the patient the chance to fnd an equally qualifed replacement.”139 Physicians also owe patients a duty of confdentiality. This duty too dates back to ancient times.140 The classic Hippocratic Oath highlights strict confdentiality: “What I may see or hear in the course of the treatment . . . in regard to the life of men, which on no account one must spread abroad, I will keep to myself, holding such things shameful to be spoken about.”141 Though subject to an increasing number of exceptions, patient confdentiality “constitutes a technically and morally essential element of efcient medical care.”142 The federal government enacted the Health Insurance Portability and Accountability Act (HIPAA) in 1996, partly to standardize exactly what information was covered by confdentiality and what exceptions existed to that coverage.143 Relevant to the issue of frearms, HIPAA allows a physician to disclose private health information if the physician, acting in good faith, believes that the information disclosure “[i]s necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public; and . . . is to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat.”144 Physicians cannot be held liable for “honest errors in professional judgment,” but “the line between medical judgment and deviation from good medical practice (i.e., negligence) is not easy to draw, especially in cases involving psychiatric treatment.”145 While laws hold psychiatrists to the same standard of care as other
138 Valarie Blake, When is a Patient-Physician Relationship Established?, AMA J. Ethics 403, 404 (2012). 139 Martin Merritt, Ethics on Ending the Patient-Physician Relationship, Mod. Med. Network (Oct. 27, 2013), http://www.physicianspractice.com/compliance/ ethics-ending-patient-physician-relationship. 140 Peter Tyson, The Hippocratic Oath Today, Nova (Mar. 21, 2001), http://www. pbs.org/wgbh/nova/body/hippocratic-oath-today.html. 141 Id. 142 Id. (citing Michael H. Kottow, Medical Confdentiality, an Intransigent and Absolute Obligation, 12 J. Med. Ethics 117, 118 (1986)). 143 Amy Barnhorst et al., How Should Physicians Make Decisions about Mandatory Reporting When a Patient Might Become Violent?, 20 AMA J. Ethics 29, 30 (2018). 144 45 C.F.R. § 164.512(j)(1)(i)(A) (2018). 145 Allen P. Wilkinson, What is the Legal Liability for Outpatient Suicide?, 23 Psychiatric Times 63, 64 (2006). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 175 physicians, the nature of psychiatry creates a particularly challenging environment of professional judgment.146 Psychiatry is “not an exact science and involves subjective professional treatment about the mental state of a patient[.]”147 Patient suicide and the clinician’s response to suicidal behaviors and ideation (discussed further below) form the basis of a signifcant number of malpractice claims against psychiatrists.148
B. Some existing legal duties physicians owe to third-parties While the establishment of a physician-patient relationship creating a duty of care is relatively settled, less clear is when a physician owes a duty of care to a person other than a patient. In cases involving harm to someone other than the patient, several courts seek to limit the extent of liability exposure.149 Most often, duties to third parties arise out of an original breach of patient care. Specifcally, “the physician has breached a duty to the patient by failing to warn the patient of dangers, and the physician plainly would be subject to liability to the patient if the patient sufered harm.”150 Liability, therefore, often hinges on foreseeability and states have, unsurprisingly, approached this issue diferently. In Massachusetts, for example, the Supreme Judicial Court has held that when a physician failed to provide the patient warnings about driving while taking certain medications, the physician breached his duty of reasonable care to everyone foreseeably put at risk, including the young boy that the patient hit and killed while driving.151 In a case with similar facts, though, the Tennessee Supreme Court held that a physician does owe a duty to the patient in terms of warning about a medication’s side efects, but that he or she does not owe a duty to the members of the public when determining whether or not to prescribe such medication.152 The care of the patient outweighs
146 15 David C. Cook et al., N.Y. Prac., New York Law of Torts § 13:16 (2018). 147 Id. 148 See What Puts a Psychiatrist at Risk for a Malpractice Lawsuit?, 6 Psychiatry 38, 38 (2009). 149 Restatement (Third) of Torts: Physical and Emotional Harm § 7 cmt. e (Am. Law Inst. 2010). 150 Id. 151 Coombes v. Florio, 877 N.E.2d 567, 568–69 (Mass. 2007). 152 Burroughs v. Magee, 118 S.W.3d 323, 335 (Tenn. 2003); see also Thomas J. Leonardo, Case Comment, Tort Law - Extending Physician’s Duty of Care to Third Parties for Breach of Duty Owed to Patient - Coombes v. Florio, 877 N.E.2D 567 (Mass. 2007), 42 Suffolk U. L. Rev. 277, 280 n.29 (2008). 176 Ryan any potential foreseeable harm to others.153 Particularly relevant in the context of frearms, physicians and some non-physician mental health professionals also owe a duty to warn third parties if a patient poses a serious threat to an identifable victim. Courts frst recognized this duty in Tarasof v. The Regents of the University of California,154 in 1976. In 1969, a graduate student at the University of California at Berkeley named Prosenjit Poddar told his psychologist that he was going to kill a fellow student, unnamed, but “readily identifable” as Tatiana Tarasof.155 Poddar and Tarasof were acquaintances, but when Tarasof rebufed Poddar’s romantic advances, he became obsessed with her.156 He secretly taped their conversations and obsessively listened to the recordings, “trying to understand why she did not love him.”157 Eventually, Poddar voluntarily sought counseling on the university campus.158 When Poddar admitted his intention to kill Tarasof, his psychologist told Poddar that “if he continued to talk about killing this . . . woman he would have him hospitalized.”159 Poddar thereafter stopped going to his therapy appointments and the psychologist subsequently reported Poddar’s threats to the police.160 The police interviewed Poddar at his home,161 but took no action upon “his promise to stay away from Tatiana.”162 Two months later, Poddar confronted Tarasof at her home and stabbed her to death with a kitchen knife.163 He was eventually convicted of second-degree murder and served fve years of a life sentence, but the Supreme Court of California overturned the conviction based on errors in the jury instructions.164 The state decided not re-try him once he agreed to return to his home country of India and never to come back to the U.S.; he complied.165
153 Burroughs, 118 S.W.3d at 335; Leonardo, supra note 152, at 280 n.29. 154 Tarasof v. Regents of the Univ. of Cal., 17 Cal. 3d 425, 437–39(1976). 155 Id. at 432. 156 Romeo Vitelli, Revisiting Tarasof, Psychology Today (July 28, 2014), https://www.psychologytoday.com/us/blog/media-spotlight/201407/ revisiting-tarasof; People v. Poddar, 518 P.2d 342, 344–45 (Cal. 1974). 157 Donald N. Bersof, Protecting Victims of Violent Patients While Protecting Confdentiality, 69 Am. Psychologist 461, 461 (2014). 158 Vitelli, supra note 156; Bersof, supra note 157, at 462. 159 Bersof, supra note 157, at 462. 160 Id. 161 Id. 162 Tarasof v. Regents of the Univ. of Cal., 551 P.2d 334, 340 (Cal. 1976). 163 Vitelli, supra note 156; Tarasof, 551 P.2d at 334, 340. 164 People v. Poddar, 518 P.2d 342, 344 (Cal. 1974); Vitelli, supra note 156. 165 Bersof, supra note 157, at 462. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 177
Tatiana’s parents then sued for wrongful death, claiming that the psychologist, and the university hospital that employed him, had a duty to warn Tatiana that Poddar had specifcally threatened to kill her.166 The defendants claimed that they owed no duty to Tatiana because she was not their patient.167 The Supreme Court of California, in a novel ruling, found that:
[T]herapists cannot escape liability merely because Tatiana herself was not their patient. When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger.168
That protection could take the form of alerting the police, alerting the intended victim directly, or “whatever other steps are reasonably necessary under the circumstances.”169 Though the Tarasof decision applied only to California, it became “perhaps the most notorious case in mental health law,”170 and now all but four states have some form of a mental health professional “duty to warn” law.171 Even the Third Restatement of Torts codifes the concept that a mental-health professional has a special relationship with a patient and therefore “owes a duty of reasonable care to third parties with regard to risks posed by the [patient] that arise within the scope of the relationship.”172 Many of these state laws prescribe the somewhat broad duty recognized by the Supreme Court of California. In Massachusetts, as in most states, mental health professionals have a mandatory duty to warn in certain circumstances.173 The relevant statute states that a licensed mental
166 Tarasof, 551 P.2d at 334, 340. 167 Id. at 341–42. 168 Id. at 340. 169 Id. 170 Bersof, supra note 157, at 461. 171 Mental Health Professionals’ Duty to Warn, Nat’l Conference of St. Legislatures (July 6, 2018), http://www.ncsl.org/research/health/mental- health-professionals-duty-to-warn.aspx. 172 Restatement (Third) of Torts: Physical & Emotional Harm § 41 (Am. Law Inst. 2012). 173 See Mass. Gen. Laws ch. 123, § 36B (2018). 178 Ryan health professional174 owes no duty to warn the potential victim of a patient unless “the patient has communicated to the licensed mental health professional an explicit threat to kill or infict serious bodily injury upon a reasonably identifed victim or victims and the patient has the apparent intent and ability to carry out the threat . . . .”175 Alternatively, if
the patient has a history of physical violence which is known to the licensed mental health professional and the licensed mental health professional has a reasonable basis to believe that there is a clear and present danger that the patient will attempt to kill or infict serious bodily injury against a reasonably identifed victim or victims . . .176 the duty also applies. In the situations in which a duty does exist, the mental health professionals must take “reasonable precautions,” such as communicating the threat to the potential victim, notifying law enforcement, arranging for the patient’s voluntary hospitalization, or initiating the procedure for the patient’s involuntary hospitalization.177 A handful of states, such as Mississippi, have permissive “duty to warn” statutes. Mississippi law states that all records of patients being treated by physicians, psychologists, licensed master social workers, and licensed professional counselors are confdential.178 However,
when the patient has communicated to the [provider] an actual threat of physical violence against a clearly identifed or reasonably identifable potential victim or victims . . . the [provider] may communicate the threat only to the potential victim or victims, a law enforcement agency, or the parent or guardian of a minor who is identifed
174 Mass. Gen. Laws ch. 123, § 1 (2017), a “licensed mental health professional” is “any person who holds himself out to the general public as one providing mental health services and who is required pursuant to such practice to obtain a license from the commonwealth.” This includes psychiatrists. See Shea v. Caritas Carney Hosp., Inc., 947 N.E.2d 99, 104 n.9 (Mass. App. Ct. 2011). 175 Mass. Gen. Laws ch. 123, § 36B(1) (2018) (emphasis added). 176 Mass. Gen. Laws ch. 123, § 36B(1)(b) (2018) (emphasis added). 177 Mass. Gen. Laws ch. 123, §§ 1, 36B (2018). 178 Miss. Code Ann. § 41-21-97 (2017). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 179
as a potential victim.”179
The difculty for physicians, of course, lies in determining whether a patient is at risk for harming themselves (discussed below) or another person. As then-President of the American Psychological Association stated in 2014, “[I]t is extremely difcult to accurately predict which outpatients who express violent thoughts or fantasies will actually engage in violence . . . . [T]he only population for which accurate assessments of risk can be made are acutely psychotic, usually paranoid, active substance abusers who recently committed an act of violence.”180
VI. Physicians and firearms
A. The right to counsel about firearms: Wollschlaeger v. Governor of Florida In 2011, Florida enacted the Firearm Owners’ Privacy Act (FOPA), which prohibited health care practitioners from entering any information about a patient’s frearm ownership into their medical record181 and stated that practitioners “should refrain”182 from even asking about frearm ownership or the presence of frearms in the home, unless such an inquiry was “relevant to the patient’s medical care or safety or the safety of others.”183 The law also prohibited a practitioner from “discriminat[ing] against a patient based solely upon the patient’s exercise of the constitutional right to own and possess frearms or ammunition.”184 Finally, the statute required practitioners to “respect a patient’s legal right to own or possess a frearm” and instructed that they “should refrain from
179 Id. (emphasis added). 180 Donald N. Bersof, Protecting Victims of Violent Patients While Protecting Confdentiality, 69 Am. Psychologist 461, 464 (2014). 181 H.R. 155, 2011 Leg., 113th Sess. (Fla. 2011); see also Wollschlaeger v. Farmer, 880 F. Supp. 2d 1251, 1267, 1270 (S.D. Fla. 2012). 182 This was apparently an attempt at compromise language between the Florida Medical Association and the NRA. See Clay Calvert et al., Physicians, Firearms & Free Expression: Reconciling First Amendment Theory with Doctrinal Analysis Regarding the Right to Pose Questions to Patients, 12 First Amend. L. Rev. 1, 14–15 (2013). In the frst district court injunction ruling, the judge found that shall/should both meant mandatory, given the sanctions attached to them. Wollschlaeger v. Farmer, 814 F. Supp. 2d 1367, 1375-77 (S.D. Fla. 2011). 183 Fla. H.R. 155 § 1. 184 Id. § 4. 180 Ryan unnecessarily harassing a patient about frearm ownership during an examination.”185 If practitioners violated these prohibitions, that constituted grounds for professional discipline.186 Such discipline could include the suspension of a license to practice medicine or an administrative fne up to $10,000.187 Ostensibly, the Florida legislature was motivated to pass FOPA based on the story of a pediatrician in Ocala, who asked the mother of a young child whether she kept a gun in her home.188 When she refused to answer the question (and yelled that it was none of his business),189 the doctor fnished the rest of the exam, but then told the mother she would have to fnd a new pediatrician.190 He told her that “they could not develop a relationship of trust essential to dealing with important health issues in the future.”191 The legislature pointed to this incident as an instance of a physician discriminating against a gun owner192 (though she refused to actually say whether she owned a gun or not). Even while creating the law, the legislature acknowledged that it was contrary to the guidance of organizations like the American Medical Association, potentially difcult to enforce, and perhaps even a violation of the First Amendment.193 In reality, what amounted to a “human interest”194 story and a handful of other similar anecdotes195 did not truly inspire the Florida legislature to enact FOPA. Rather, the NRA seized upon the stories as apparent evidence that “doctors were ‘carrying out a gun-
185 Fla. H.R. 155. 186 Id. 187 Id. The earliest version of the bill made asking a patient about a frearm a third degree felony, punishable by up to 5 years imprisonment, with potential fnes up to $5 million. S. 432, 2011 Leg. (Fla. 2011); Fla. Stat. § 775.082 (2018). 188 Marla Spector Bowman, Docs v. Glocks: Speech, Guns, Discrimination, and Privacy – Is Anyone Winning?, 67 Fla. L. Rev. 1455, 1461 (2015) (citing Fred Hiers, Family and Pediatrician Tangle over Gun Question, Ocala.com (July 24, 2010, 11:52 AM), http://www.ocala.com/news/20100724/family-and-pediatrician- tangle-over-gun-question). 189 Helena Rho, The Pediatricians v. The NRA, Slate (Feb. 1, 2013, 2:53 PM), http:// www.slate.com/articles/health_and_science/medical_examiner/2013/02/ pediatricians_and_nra_physician_gag_rules_and_the_cdc_aca_and_states. html. 190 Id. 191 Bowman, supra note 188 (citing Hiers, supra note 187). 192 Bowman, supra note 188, at 1461. 193 Id. at 1462–63. 194 Calvert et al., supra note 182, at 20. 195 Id. at 12–13. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 181 ban campaign.’”196 The NRA had been pushing similar legislation starting in 2006197 and essentially drafted the Florida legislation.198 Marion Hammer, a longtime and powerful NRA lobbyist in Florida, had a line straight to legislators.199 She even directly reprimanded a legislature policy chief for proposing changes while the bill was in development. Hammer insisted that the policy chief do things, such as “put the frst section back as it was and amend it as I suggested.”200 The policy chief agreed and made the NRA’s desired changes.201 Within days of Governor Rick Scott signing the bill into law, three medical professionals, led by Dr. Bernd Wollschlaeger, fled suit, claiming that FOPA violated not only their First Amendment right to free speech but also that of their patients to hear from their doctors.202 Eventually, a plethora of other health care workers and medical organizations joined the suit. As the complaint stated, “[b]y severely restricting . . . speech and the ability of physicians to practice such preventative medicine, the Florida statute could result in grievous harm to children, adolescents, adults, and the elderly. The First Amendment does not permit such a gross and content- based intrusion on speech . . . .”203 The plaintifs deemed FOPA the “Physician Gag Law.”204 Florida ofered two primary justifcations for the law: (1) protecting the privacy rights of patients with guns, and (2) protecting the Second Amendment rights of all Floridians.205 The claim that FOPA protects the Second Amendment fails easily. Physicians are private actors and the Second Amendment applies only to the
196 Mike Spies, The N.R.A. Lobbyist Behind Florida’s Pro-Gun Policies, The New Yorker (Mar. 5, 2018), https://www.newyorker.com/magazine/2018/03/05/ the-nra-lobbyist-behind-foridas-pro-gun-policies. 197 Bowman, supra note 188, at 1469. 198 Carl Hiaasen, Florida Loses Another Ridiculous Legal Battle, Miami Herald (July 7, 2012, 12:00AM; updated May 15, 2018, 6:19PM), http://www.miamiherald. com/opinion/opn-columns-blogs/carl-hiaasen/article211205739.html; see also Michelle Foody, Note, Docs Versus Glocks: N.R.A. Takes Aim at Florida Physicians’ Freedom of Speech: Leaving Patients’ Health, Safety, and Welfare at Risk, Cardozo L. Rev. de novo 228, 233 (2013). 199 Spies, supra note 196. 200 Id. 201 See id. 202 Rho, supra note 189. 203 Complaint for Declaratory and Injunctive Relief at 1, Wollschlaeger v. Farmer, 880 F. Supp. 2d 1251 (S.D. Fla. 2012) (No. 11-22026-Civ.). 204 Id. 205 Foody, supra note 198, at 243. 182 Ryan government. Even if physicians were state actors (as, perhaps, a Veterans Administration employee might be), mere inquiry206 does not infringe on the right of any patient to keep frearms in the home for the purposes of self-defense, which is what the Supreme Court has deemed protected.207 Quite simply, “no doctor’s speech has any power to take away any guns.”208 That a law as extreme as FOPA came out of Florida is hardly surprising. Florida has long been known as a gun-friendly location, even dubbed the “Gunshine State.”209 The gun ownership rate is almost one-third.210 At the time of FOPA’s enactment, Florida had also recently passed laws requiring that employers allow employees to keep frearms in their on-site vehicles and that county governments allow guns in public buildings and parks.211 Interestingly, back in 1989, Florida actually became the frst state in the country to pass safe-storage laws for frearms; the legislature specifcally invoked the “tragically large number of Florida children [who] have been accidentally killed or seriously injured by negligently stored frearms.”212 Improper storage of frearms, of course, is precisely one of the issues that physicians wished to speak to parents about, but which FOPA prohibited.213 Over the next several years, the Wollschlaeger case went through a complicated procedural tangle. Initially, the federal district court agreed with the plaintifs that the law violated physicians’ First Amendment right to free speech and struck down the law.214 The judge, who emphasized an almost total lack of evidentiary support
206 Eugene Volokh, Content-based restriction on doctors’ speech to patients about guns passes ‘strict scrutiny’, Wash. Post (Dec. 16, 2015), https://www. washingtonpost.com/news/volokh-conspiracy/wp/2015/12/16/content- based-restriction-on-doctors-speech-to-patients-about-guns-passes-strict- scrutiny/?utm_term=.9ce299ba6cac. 207 District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. City of Chicago, 561 U.S. 742, 791 (2010). 208 Volokh, supra note 206. 209 Calvert, supra note 181, at 17. 210 Andy Kiersz & Brett LoGiurato, Here’s Where You’re Most Likely to Own a Gun, Business Insider (July 3, 2015), http://www.businessinsider.com/gun- ownership-by-state-2015-7. 211 Calvert, supra note 182, at 17. 212 Foody, supra note 198, at 246. 213 See H.B. 155, 2011 Leg. (Fla. 2011). 214 Recent Case, First Amendment – Eleventh Circuit Upholds Florida Law Banning Doctors from Inquiring about Patients’ Gun Ownership when Such Inquiry is Irrelevant to Medical Care: Wollschlaeger v. Governor of Florida, 760 F.3d 1195 (11th Cir. 2014), 128 Harv. L. Rev. 1045, 1046 (2015). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 183 for Florida’s assertions,215 issued a permanent injunction against the law’s enforcement. But Governor Rick Scott appealed the decision to the Eleventh Circuit, whose three-judge panels (through a series of hearings and re-hearings), issued three diferent rulings,216 all of which upheld the law on varying grounds.217 The fnal three-panel ruling even upheld the law under strict scrutiny.218 After garnering national attention219 and being dubbed the “Docs vs. Glocks”220 case, the Eleventh Circuit agreed to an en banc review of the case. The full court, in a 10–1 decision, overturned the panel, striking down most provisions of the law as violating the First Amendment, even using heightened rather than strict scrutiny.221 The court emphasized that “doctors and medical professionals, as private actors, do not have any authority (legal or otherwise) to restrict the ownership or possession of frearms by patients (or by anyone else for that matter). The Second Amendment right to own and possess frearms does not preclude questions about, commentary on, or criticism for the exercise of that right.”222 The Eleventh Circuit struck down the record-keeping, inquiry, and anti-harassment provisions at issue in FOPA.223 It upheld only the anti-discrimination clause, interpreting it to mean that physicians cannot single out gun-owning patients by doing things such as deliberately failing to return messages, charging more for the same services, or delaying treatment.224 The court acknowledged that “the applicable standard of care encourages doctors to ask questions about frearms,”225 and that overall, “there is no claim,
215 Calvert, supra note 182, at 33. 216 Volokh, supra note 206, at 1; Wollschlaeger v. Governor of Fla., 760 F.3d 1195 (11th Cir. 2014); Wollschlaeger v. Governor of Fla., 797 F.3d 859 (11th Cir. 2015); Wollschlaeger v. Governor of Fla., 814 F.3d 1159 (11th Cir. 2015). 217 Wollschlaeger v. Governor of Fla., 848 F.3d 1293, 1301 (11th Cir. 2017). 218 See Wollschlaeger, 814 F.3d at 1186. 219 See, e.g., Ward, supra note 4; Clay Calvert, Docs v. Glocks Case Fires Up in Florida: ACLU Files Brief on First Amendment Speech Rights, Huffington Post (Aug. 27, 2014, 1:12 PM), https://www.hufngtonpost.com/clay-calvert/docs-v- glocks-case-fres-_b_5718743.html. 220 See, e.g., Scott Maxwell, Docs v. Glocks: Nutty Nonsense Run Amok, Orlando Sentinel (Feb. 21, 2017, 5:00 PM), http://www.orlandosentinel.com/ opinion/os-forida-docs-glocks-nra-scott-maxwell-20170221-story.html. 221 Wollschlaeger, 848 F.3d at 1301. 222 Id. at 1313. 223 Id. at 1318. 224 Id. at 1317. 225 Id. 184 Ryan much less any evidence, that routine questions to patients about the ownership of frearms are medically inappropriate, ethically problematic, or practically inefective.”226 Before the Florida law was struck down, the NRA helped get similar legislation introduced in Alabama, Minnesota, Montana, North Carolina, Oklahoma, South Carolina, Virginia, and West Virginia.227 Only Montana, which has one of the highest gun suicide rates in the country,228 actually enacted anything close to FOPA. Focusing on discrimination rather than speech, Montana now prohibits a health care provider or facility from making a patient’s frearm ownership (or a refusal to talk about frearms ownership) a condition of receiving health care.229 Florida wisely chose not to appeal the Eleventh Circuit Wollschlaeger decision to the U.S. Supreme Court.230 And though the ruling technically only applies to Florida, Alabama, and Georgia, the case had social and legal ramifcations far beyond that region.231 The message was clear: physicians have a right to talk to their patients about frearms. The next logical step is to ask whether physicians actually have a duty to do so.
B. So there’s a right to talk about firearms, but is there a duty? No statute or case law currently requires physicians to discuss frearms with their patients in any situation.232 Indeed, most physicians “ask infrequently about frearms and counsel poorly, if at all . . . .”233 However, duties to ask about frearms—whether about ownership, possession, access to, or storage of—are easily read into existing physician duties of care, particularly in the context of suicidal or pediatric patients. So, while there may be no currently
226 Id. at 1316. 227 Bowman, supra note 188, at 1469–70. 228 Nat’l Ctr. for Health Statistics, Stats of the State of Montana, Ctrs. for Disease Control and Prevention (Apr. 11, 2018), https://www.cdc.gov/nchs/ pressroom/states/montana/montana.htm; Mont. Dep’t of Pub. Health and Human Servs., Montana Strategic Suicide Prevention Plan 9, 14, 18 (July 2016), https://www.sprc.org/sites/default/fles/State%20Suicide%20Plan-2017.pdf. 229 Mont. Code Ann. § 50-16-108 (2013). 230 Kam, supra note 10. 231 See, e.g., Parmet et al., supra note 5. 232 Garen J. Wintemute et al., Yes, You Can: Physicians, Patients, and Firearms, 165 Annals of Internal Med. 205, 205 (2016). 233 Id. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 185 articulated duty to discuss frearms, such a duty may very well be found without any further legislation or common law development.
1. Physicians, suicidal patients, and firearms Historically, even as states increasingly decriminalized sui- cide, tort law still considered suicide an intentional act and therefore one that “broke the chain of causation between the defendant’s negligence and the plaintif’s death.”234 But the law also imposed an afrmative duty in some situations, including upon hospitals, to prevent patients from attempting or completing suicide.235 “Two key facts are common in the cases fnding that third parties have assumed a suicidal person’s duty of care: (1) the defendant exercised custody or control over the suicide victim, and (2) the defendant knew or had reason to know that the suicide victim was a danger to himself.”236 This notion of restricting the duty to patients under direct custodial control used to be pervasive; psychiatrists treating outpatients “essentially enjoyed legal immunity from liability for their negligence in treating such patients who did commit suicide or were injured in a suicide attempt.”237 Courts have increasingly found that outpatient status does not necessarily mean that a treating physician is relieved of a duty to treat. Rather, “the relevant inquiry is whether a physician failed to provide treatment for the patient and that failure proximately resulted in the patient taking his or her life.”238 This concept grows out of the more general duty of a physician to “exercise the degree of skill ordinarily employed under similar circumstances by medical specialists in his feld in the same or similar communities.”239 Today, medical malpractice claims based on suicide make up the largest number of claims (20%) against psychiatrists, and the largest percentage of dollars paid in settlement (40%).240
234 Susan Stefan, Rational Suicide, Irrational Laws: Examining Current Approaches to Suicide in Policy and Law 22 (2016). 235 Victor E. Schwartz, Civil Liability for Causing Suicide: A Synthesis of Law and Psychiatry, 24 Vand. L. Rev. 217, 245 (1971); see also Charles J. Williams, Fault and the Suicide Victim: When Third Parties Assume a Suicide Victim’s Duty of Self-Care, 76 Neb. L. Rev. 301, 302, 305–06 (1997). 236 Williams, supra note 235, at 309. 237 Wilkinson, supra note 145, at 63. 238 Id. (quoting Edwards v. Tardif, 692 A.2d 1266 (Conn. 1997)). 239 Schwartz, supra note 235. 240 Martin Blinder, Psychiatry in the Everyday Practice of Law § 186 Ryan
The issue of whether assessing suicidality is part of a routine duty of care that a physician owes to a patient is rooted in malpractice law and therefore varies from state to state.241 But a few cases are illustrative of the principle that failure to treat a patient known to be at risk for suicide constitutes a failure of the duty of care. In 1978—just two years after the seminal Tarasof decision—the California Court of Appeals held in Bellah v. Greenson that a psychiatrist owed a duty of care to a patient to take appropriate preventive measures when that patient was potentially suicidal, even when not in a hospital or custodial setting.242 Tammy Bellah was a patient of psychiatrist Daniel Greenson when she died by suicide from an overdose of pills.243 Greenson had “concluded that Tammy was disposed to suicide” and her parents sued him for wrongful death, based on his failure to prevent her suicide.244 Tammy had been an outpatient of Dr. Greenson, and California, up to that point, had only ever found a duty to take precautions to prevent the suicide of a patient admitted to an institutional setting.245 Here, however, the court found that a similar duty of care existed for an outpatient-psychiatrist relationship as well; whether such duty had been breached was a question of fact.246 Explicitly refusing to extend Tarasof, however, the court held that this duty was owed directly and solely to the patient, and did not require the psychiatrist to break confdentiality to inform third parties of a patient’s potential suicide.247 Failing to take precautions for the patient, however, fell below the professional standard of care and could therefore form the basis of a malpractice claim.248 Similarly, in 2016, the Florida Supreme Court ruled that a primary care physician’s regular duty of care to a patient could be breached if that patient dies by suicide. In Chirillo v. Granicz,249 a primary care physician had been prescribing Jacqueline Granicz an anti-depressant for about three years when she requested a change in prescription because she was experiencing unpleasant
13:1 (4th ed. 2016). 241 See B. Sonny Bal, An Introduction to Medical Malpractice in the United States, 467 Clinical Orthopedic Related Res. 339, 340 (2009). 242 Bellah v. Greenson, 81 Cal.App.3d 614 (1978) (dismissed on other grounds). 243 Id. at 618. 244 Id. 245 Id. at 620. 246 Id. 247 Id. at 620–21. 248 Wilkinson, supra note 145, at 63. 249 Chirillo v. Granicz, 199 So.3d 246, 248 (2016). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 187 side efects. Dr. Chirillo prescribed a new medication; the day after picking up her new pills, Granicz died by suicide.250 Her husband sued Dr. Chirillo, claiming he breached his duty of care to treat Mrs. Granicz appropriately and that breach had resulted in her suicide.251 Unlike in Bellah, Dr. Chirillo had never observed nor noted that his patient seemed suicidal.252 The Florida Supreme Court held that a patient’s suicide could be considered a breach, amounting to medical malpractice, of the regular duty of care owed to a patient; whether or not such a breach occurred is a factual inquiry.253 Liability for patient suicide still remains a matter that varies from state to state. In Massachusetts, for example, a psychiatrist clearly has a legal duty to treat a patient according to the standard of care, but has no additional specifc legal duty to safeguard the patient from serious danger to himself.254 Importantly, unlike the legislative proliferation that followed Tarasof, few statutes exist that spell out a provider’s duty owed directly to a suicidal patient. Some states, like New York, do include reporting whether a patient is at risk of serious harm to themselves in their Tarasof-esque laws.255 Essentially no cases exist that specifcally address frearms in terms of a physician’s duty of care owed to a potentially suicidal patient. In fact, only one published case appears to exist that even raises a claim of “failing to give appropriate warnings and precautions reasonably calculated to prevent [decedent’s] access to frearms.”256 In Scheidt v. Denney, Mr. Scheidt had been committed to a psychiatric hospital for several weeks, under the care of Dr. Denney.257 After discharge, he failed to continue to see Dr. Denney and died by suicide, using a frearm, one week later.258 Mr. Scheidt’s wife sued Dr. Denney for wrongful death and, among other things, a common law claim of “failing to give appropriate warnings and precautions reasonably calculated to prevent Mr. Scheidt’s access to frearms.”259 The case, however, does not ever address the frearm claim specifcally. The jury found that Dr. Denney had breached standards of care, but did not specify which
250 Id. 251 Id. 252 Id. 253 Id. at 251. 254 See Stepkakof v. Kantar, 473 N.E.2d 1131, 1135 (Mass. 1985). 255 See N.Y. Mental Hyg. Law § 9.46 (McKinney 2013). 256 Scheidt v. Denney, 644 So. 2d 813 (La. Ct. App. 1994). 257 Id. at 814–15. 258 Id. at 815. 259 Id. 188 Ryan standards or how they were breached.260 The jury also concluded that those breaches did not actually cause Mr. Scheidt’s death.261 The Louisiana Court of Appeals upheld the verdict, stating simply that the record could have supported a “fnding of improper post- discharge care and/or failure to give appropriate frearms warnings and precautions.”262 So, while possible that the jury could have not only found but supported a common law claim for a physician’s failure to give warnings to a suicidal psychiatric patient, neither the verdict nor the decision in the appeal solidifed that fnding. As part of a general duty of care, however, reducing access to frearms should be a primary focus for suicide prevention,263 and physicians should prioritize asking about such access.264 Physicians should utilize “lethal means counseling” as a routine part of emergency and primary care,265 though particularly “when a patient provides information or exhibits behavior suggesting an acutely increased risk for violence, such as explicit or implicit endorsement of suicidal or homicidal intent or ideation.”266 Such counseling includes suicide risk assessment and creating a plan to remove certain objects from the patient’s home, such as frearms and other weapons, in addition to medications, alcohol and other potential poisons.267 For older children and adolescents, suicide should be of particular concern. Children who die by suicide using a frearm are most often experiencing “acute crises and life stressors such as relationship, school, and crime problems.”268 This age group tends to be impulsive and therefore access to frearms poses a particular risk.269 Pediatricians can potentially reduce such deaths not only by
260 Id. 261 Id. 262 Id. at 817. 263 Carol W. Runyan et al., Law Enforcement and Gun Retailers as Partners for Safely Storing Guns to Prevent Suicide: A Study in 8 Mountain West States, 107 Am. J. Pub. Health 1789, 1789 (2017). 264 See Alexander D. McCourt & Jon S. Vernick, Law, Ethics, and Conversations Between Physicians and Patients About Firearms in the Home, 20 AMA J. Ethics 69, 70 (2018). 265 Runyan et al., supra note 263, at 1789. 266 Garen J. Wintemute et al., Yes, You Can: Physicians, Patients, and Firearms, 165 Annals Internal Med. 205, 207 (2016). 267 Runyan et al., supra note 263, at 1789. 268 Katherine A. Fowler et al., Childhood Firearm Injuries in the United States, 140 Pediatrics 1, 8 (2017). 269 Miller et al., supra note 75, at 1031. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 189 screening for depression and other behavioral health risks, but also by inquiring about the access to frearms at times when children may be experiencing crisis.270 These inquiries should include questioning both the child and the parent/guardian about the presence of frearms in the home, the storage of those frearms, and whether the frearms can be removed from the home temporarily. The most difcult barrier to implementing these conversations is the reluctance of physicians themselves:
The fact is that most clinicians, including those who routinely encounter suicidal patients, rarely, if ever, provide frearm-safety counseling. This reticence predated the FOPA and has persisted since its passage, despite evidence that physicians believe that they have a right and a responsibility to engage in frearm-injury prevention, that authoritative medical societies have recommended counseling at-risk patients, and that the majority of gun owners agree that such counseling may be appropriate.271
Even though they have the legal right to discuss frearms, some physicians may simply feel uncomfortable or anxious about these conversations.272 Some may be concerned about the conversation becoming political, or the potential of the conversation to ofend the patient.273 A risk assessment, particularly if the patient has indicated a potential for harming themselves or others, must include questions about guns, including the types of guns owned and how the guns are stored.274 Encouragingly, most patients are receptive to and comfortable with physicians “initiating discussions about frearms in the home in the context of depression, suicidality, or cognitive impairment, and that physician counseling can exert a substantial positive impact on frearm safety practices in the patient’s home.”275
270 See Fowler et al., supra note 268, at 9. 271 Wendy E. Parmet et al., Physicians, Firearms, and Free Speech – Overturning Florida’s Firearm Safety Gag Rule, 376 New Eng. J. Med. 1901, 1902−03 (2017). 272 Amy Barnhorst et al., How Should Physicians Make Decisions about Mandatory Reporting When a Patient Might Become Violent?, 20 AMA J. Ethics 29, 31 (2018). 273 Id. 274 Id. at 31–32. 275 Marshall B. Kapp, The Physician’s Responsibility Concerning Firearms and Older 190 Ryan
Easy scripts also exist for those physicians who may be reluctant to broach the subject:
Lots of families in my practice keep guns at home. Sometimes when a gun owner is struggling . . . and has thoughts of suicide, they’ll temporarily store their guns such that they can’t get to them in a moment of desperation. For example, some people will ask their friends to hold onto their guns, others will store their guns locked up and keep the key in a safe deposit box at the bank until they’ve recovered. Are these strategies you might consider?276
The emphasis should be on collaboration and support, focusing on the patient making the right choice.277
2. Pediatricians and firearms In addition to the duties specifc to suicide discussed above, pediatricians have a heightened duty to discuss frearms with the parents of their patients. “The American Academy of Pediatrics (AAP) . . . recommends that conversations about guns and gun safety start during a prenatal visit and be repeated every year as part of anticipatory guidance. Those conversations start with a question: ‘Do you own a gun?’”278 The improper storage of frearms signifcantly increases the chances that a child will access it.279 Although 19 states have laws
Patients, 25 Kan. J.L. & Pub. Pol’y 159, 175 (2016); see also Erin Renee Morgan et al., Firearm Ownership, Storage Practices, and Suicide Risk Factors in Washington State, 2013−2016, 108 Am. J. Pub. Health 882, 887 (2018) (“A nationally representative survey of adults in the United States found that 2 in 3 adults agree that it is sometimes appropriate for clinicians to discuss frearms with their patients.”). 276 Catherine Barber et al., How Physicians Can Reduce Suicide – Without Changing Anyone’s Mental Health, 129 Am. J. Med. 1016, 1016–17 (2016). 277 See id. Physicians do need to be aware of the relevant state laws about, for example, transferring frearms from one person to another. See McCourt & Vernick, supra note 18, at 70–71. 278 Rho, supra note 189. 279 Nat’l Physicians All. & Law Ctr. to Prevent Gun Violence, Gun Safety & Public Health: Policy Recommendations for a More Secure America 7 (2013), http://npalliance.org/wp-content/uploads/ Gun_Safety_Public_Health_Joint_Report-092513.pdf. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 191 aimed at preventing frearm access by children,280 an estimated two million children live in households with loaded, unlocked guns.281 Only 39% of parents believed that their children even knew where guns were kept in the home, but in reality, 73% of children knew and 36% had even handled the guns.282 The AAP recommends that physicians should have a “tailored safe storage counseling approach,” including a discussion with parents not only about ownership, but also about the number and types of guns in the home.283 The AAP guidelines for parents recommend that all frearms in a household be stored locked and unloaded, but fewer than one in three new gun owners with children actually adhere to that practice.284 Promisingly though, even brief counseling in the ofce by a pediatrician has positive efects: one study found families with frearms who received such counseling were three times more likely to make safety changes than those who did not have a discussion.285 Improved storage practices are easy to implement and efective in reducing the access that children have to guns.286 The U.S. General Accounting Ofce has estimated that 31% of accidental deaths caused by frearms might be prevented by the addition of two devices: (1) a child-proof safety lock, and (2) a loading indicator.287 Another study found that keeping frearms locked, unloaded, and stored separately from locked ammunition has a “protective efect” and may reduce youth suicide and “unintentional injury.”288
280 McCourt & Vernick, supra note 18, at 71; see also National Data, St. Firearm Laws, https://www.statefrearmlaws.org/national-data (choose Category: Child Access Prevention) (last visited Oct. 1, 2018). 281 Renee M. Johnson et al., Are Household Firearms Stored Less Safely in Homes With Adolescents, 160 JAMA Pediatrics 788, 788 (2006). 282 Nat’l Physicians All. & Law Ctr. to Prevent Gun Violence, supra note 41, at 7. 283 Foody, supra note 198, at 241. 284 Joseph Wertz et al., Diferences Between New and Long-Standing U.S. Gun Owners: Results From a National Survey, 10 Am. J. Pub. Health 871, 871 (2018); see also Deborah Azrael et al., Firearm Storage in Gun-Owning Households with Children: Results of a 2015 National Survey, 95 J. Urb. Health 295, 296 (2018). 285 See Foody, supra note 198, at 241; see also Paul J. D. Roszko et al., Clinician Attitudes, Screening Practices, and Interventions to Reduce Firearm-Related Injury, 38 Epidemiologic Rev. 87, 104 (2016). 286 See McCourt & Vernick, supra note 18, at 71. 287 U.S. General Accounting Office, GAO/PEMD-91-9, Accidental Shootings: Many Deaths and Injuries Caused by Firearms Could Be Prevented 17, 17 (1991). 288 Nat’l Physicians All. & Law Ctr to Prevent Gun Violence, supra note 41, at 7 (citing Mark A. Schuster et al., Firearm Storage Patterns in U.S. 192 Ryan
3. Primary care and firearms In a primary care or family practice setting, a physician should routinely ask,289 as part of the basic duty of care owed to a patient: whether the patient has frearms in the home, how those frearms are stored, what training the patient has in frearms, who else is in the household, and whether there is a history of any violence or suicidal behavior in the patient’s or in any household members’ pasts.290 Such discussion could include “speaking freely to patients in a nonjudgmental way, giving them safety-related factual information, answering patients’ questions, advising them about behaviors that promote health and safety, and documenting these conversations in the patient’s medical record (just as the physician would document conversations . . . regarding other kinds of health- related behaviors).”291 This questioning should also continue at regular intervals, as the “dynamic nature of frearm ownership” means that a patient’s status as a non-gun owner may change by the next visit.292 Physicians may also be reluctant to discuss frearms as part of routine care, whether because of unfamiliarity with the subject, uncertainty about wording, anxiety about harming the relationship with the patient, or not wanting to wade into a “political” topic.293 Basic training, assistance of example scripts (as discussed above), and guidance from other practitioners can address and ease many of these physician concerns.294
4. Potentially dangerous patients and firearms Inquiring about frearms should be paramount when a Tarasof-like situation arises and a patient poses a potential danger to another person. Indeed, determining access to frearms (and other potentially lethal means) in such situations is self-evident.295 As soon as a physician has reason to believe that the patient may pose a threat to another person, he or she must, if at all possible,
Homes with Children, 90 Am. J. Pub. Health 588, 590 (2000)). 289 See Wintemute et al., supra note 231, at 211. 290 See id. at 207, 209. 291 Kapp, supra note 274, at 174–175. 292 See Wertz et al., supra note 283. 293 See Wintemute et al., supra note 231, at 208. 294 Id. at 208–09. 295 Id. at 207. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 193 immediately inquire about the patient’s access to frearms. This determination could be crucial, not only in deciding whether the threat rises to the level of required reporting, but also in gauging the seriousness of the threat. The lethality associated with frearms could transform an otherwise empty threat into a deadly one. Taking frearms into account is especially crucial if the required duty has an element about whether the patient has the “. . . ability to carry out the threat.”296
VII. Conclusion Physicians clearly have a right to discuss frearms with patients, and generally have a professional duty to do so as well. While no legal duty has yet been articulated, such a duty could easily be read into existing duties of care. However, doing so would inevitably lead to an increase in malpractice claims, an issue that the medical community already bemoans.297 Mandating these conversations—either by law or by instilling fear of malpractice— could have a positive impact in terms of educating patients about the dangers of frearms, proper storage techniques, and the like. Though, largely due to the dearth of research funding, that impact is far from certain. Looking at the issue of frearm violence from a perspective of getting fewer people to die, adding to the legal burden of physicians is not the best way to accomplish that. Imposing an articulated duty would risk creating hostility from the medical community, which may very well view another requirement as a hassle, inconvenience, added expense, or imposition on their relationships with their patients. But, doctors play far too crucial a role in fghting gun violence to risk that rift.298 The idea should be to get doctors to adopt these inquiries and discussions as part of routine care, not because they are ordered to do so by legislatures, courts, or attorneys, but because these inquiries could literally save lives. A partnership between the medical community, the public health community, and the legal community should remain the ideal alliance. Imposing an explicit, mandated duty on physicians to discuss frearms with their patients would risk causing resentment and fear of litigation. Instead, the
296 See Mass. Gen. Laws ch. 123, § 36B(1) (2018). 297 See Joseph Bernstein, Malpractice: Problems and Solutions, 471 Clinical Orthopaedics & Related Res. 715 (2013). 298 See Priya Joshi, Doctors Need to Discuss Firearm Safety and Gun Violence with Their Patients, STAT (Nov. 13, 2017), https://www.statnews.com/2017/11/13/gun- violence-frearms-doctors-patients/. 194 Ryan focus should be squarely on reducing the number of injuries and deaths, by encouraging physicians to talk to their patients about guns. This simple update would put physicians in the best position to start moving toward the goal of losing fewer lives to guns, all with a simple conversation. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 195
Deputizing Family: Loved Ones as a Regulatory Tool in the “Drug War” and Beyond
Matthew B. Lawrence*1
Many laws use family members as a regulatory tool to infuence the decisions or behavior of their loved ones, i.e., they deputize family. Involuntary treatment laws for substance use disorder are a clear example; such laws empower family members to use information shared by their loved ones to petition to force their loved ones into treatment without consent. Whether such deputization is helpful or harmful for a patient’s health is a crucial and dubious question discussed in existing literature, but use of family members as a regulatory tool implicates important considerations beyond direct medical impacts that have not been as fully explored. These include the potential for interference with underlying family relationships, the invisibility of care worker burdens, and the inequality of both the burdens and the benefts of care work. This Article shows how these difcult-to-quantify social consequences of deputizing family can and should be incorporated into the evaluation of laws that use loved ones as a tool of public health. It develops a normative framework for doing so and demonstrates the usefulness of this framework by applying it to the question of how and when patients may permit family members to access and authorize disclosures of protected health information. That analysis reveals the desirability of an “active choice” approach to such deputization; as compared to an “isolation by default” approach, active choice holds the promise to better and more fairly encourage, recognize, support, facilitate, and perhaps even compensate the uniquely valuable care work by loved ones that many who sufer from substance use disorder rely upon as a crucial support in their battle with illness. Specifc administrative changes to efectuate that conclusion are recommended. Finally, the broader promise and pitfalls of the Article’s “deputization” frame for understanding certain forms of care work are also discussed.
*1 Assistant Professor of Law, Pennsylvania State University, Dickinson Law. The author wishes to thank the hosts of and participants in Northeastern University School of Law’s 2018 annual conference, “Diseases of Despair: The Role of Law & Policy,” and to acknowledge the terrifc research assistance of Emily Paul and Penn State Dickinson Law’s Addiction Legal Resources Team— Bryan Cafrey, Andrea Jenkins, Evan Marmie, Tori Remington, Alexander Short, and Wyatt Weisenberg. This Article is dedicated to the individuals afected by addiction whose stories informed and inspired our research. The author wishes to disclose a fnancial relationship with the U.S. Department of Justice and Ofce of Management & Budget. 196 Lawrence
Table of Contents I. Introduction ...... 197 II. Loved Ones as a Regulatory Tool in Public Health: the Case of SUD ...... 200 A. Leverage Points for Regulating SUD ...... 200 B. Explicit Deputization ...... 204 C. Implicit Deputization ...... 207 III. The Social Consequences of Deputizing Family ...... 211 A. Health Consequences of Deputization ...... 213 B. Social Consequences of Deputization ...... 215 1. Interference ...... 216 2. Invisibility...... 218 3. Inequality ...... 222 IV. Addressing Social Consequences ...... 224 A. Health, Love, and Knowledge ...... 224 B. The Need for Research into the Social Consequences of Deputization: The Case of Involuntary Treatment Laws ...... 227 C. Accounting for the Social Consequences of Deputization with Break-Even Analysis ...... 230 D. Application: The Choice Architecture of Disclosure to and by Family ...... 231 1. Choice Architecture of Deputization for SUD Disclosures ...... 233 2. The Preferability of Break-Even Analysis over HHS’s Regulatory Approach ...... 235 3. Break-Even Analysis Indicates that Providers Should Be Encouraged to Ofer an Active Choice About Part 2 Consent ...... 238 4. Break-Even Analysis Indicates that Permitting Supported Decision-Making for Part 2 Consent is a Difcult Judgment Call ...... 243 5. Patient Deputies ...... 247 V. Conclusion: Deputizing Family in SUD and Beyond ...... 248 VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 197
I. Introduction The United States regulatory framework for preventing, treating, and reducing the harms of substance use disorder (“SUD”) increasingly relies upon loved ones of those who sufer from the disease. In some cases the law explicitly and intentionally deputizes family in addressing SUD; for example, “accessory” drug laws enlist family in eforts at prevention-by-prohibition by making them liable for involvement in their loved ones’ drug use.1 And involuntary treatment laws enacted by numerous states and under consideration in many others explicitly empower a person’s “physician, spouse, blood relative, [or] guardian” to petition a court to have them sent to treatment.2 In other cases, the SUD regulatory framework deputizes family implicitly and perhaps unintentionally, though nonetheless foreseeably. In many counties and states today, accessing treatment for SUD entails days or weeks of phone calls and car trips looking for open beds, especially for those hoping to have treatment covered by insurance or Medicaid. In economics and ethics, this is referred to as rationing by “ordeal”—rather than prices separating those who receive the good from those who do not, a person’s ability to complete an arduous task does so.3 When it comes to addiction, the ordeal our regulatory framework puts between self-diagnosis of
1 See, e.g., United States v. Jenkins, 928 F.2d 1175, (D.C. Cir. 1991) (upholding conviction based on inference that one who owns and maintains a house knows about drug and other illegal activities her son and other occupants engage in inside the home); United States v. Johnson, 769 F. Supp. 389, 394 (D.D.C. 1991) (holding that “Johnson’s status as the lessee alone is a sufcient basis upon which to fnd Ms. Johnson guilty of possession with intent to distribute” in violation of 21 U.S.C. §§ 841(a)(1) (2018)). 2 E.g., S. 391, Gen. Assemb., 2017−18 Reg. Sess. (Pa. 2017) (“A spouse, relative or guardian of the respondent must fle the [involuntary treatment] petition.”). See also Mass. Gen. Laws ch. 123, § 35 (2018) (showing that a proceeding may be initiated by a “police ofcer, physician, spouse, blood relative, guardian, or court ofcial”). See generally Involuntary Commitment for Individuals with a Substance Use Disorder or Alcoholism, Nat’l Alliance for Model State Drug Laws (Aug. 2016), http://www.namsdl.org/IssuesandEvents/ NEW%20Involuntary%20Commitment%20for%20Individuals%20with%20 a%20Substance%20Use%20Disorder%20or%20Alcoholism%20August%20 2016%2009092016.pdf. 3 See Benjamin A. Olken, Hassles Versus Prices: How Can Subsidized Health Products Best Target Those Who Value Them?, 353 Science 864 (2016). See generally Vivi Alatas et al., Ordeal Mechanisms in Targeting: Theory and Evidence from a Field Experiment in Indonesia (National Bureau of Economic Research, Working Paper No. 19127, 2013). 198 Lawrence suspected SUD and life-saving treatment can efectively conscript involved loved ones in helping a person with SUD fnd and obtain care, unpaid. These are only examples. For many suferers, loved ones play a vital and often personally costly role in almost every aspect of their battle with SUD. Families devote countless hours to reducing the harms of illness, accessing and navigating treatment, and assisting their loved ones in their recovery. They provide support, shelter, food, counseling, oversight, transportation, encouragement, love, advocacy, and care, among other things.4 Scholarship addressing specifcally the role of family in fghting disease, including SUD, has appropriately focused on the crucial and pressing question of whether family involvement helps or hurts patients’ (or, sometimes, caregivers’) health outcomes (meta-analyses of existing studies report that social relationships signifcantly improve health outcomes on net),5 with some exceptions.6 On this frame, whether deputization is a good idea or not depends exclusively on whether it improves the health of those directly impacted or not. This Article shows how our understanding of the wisdom vel non of laws that deputize family members can
4 See generally Beverly Conyers, Addict in the Family: Stories of Loss, Hope, and Recovery (2003); Bonnie Kaye, Jennifer Needle in Her Arm: Healing from the Hell of my Daughter’s Drug Overdose (2014); Chloe Silverman, Understanding Autism: Parents, Doctors, and the History of a Disorder 235−36 (2012). 5 See Julianne Holt-Lunstad et al., Social Relationships and Mortality Risk: A Meta- Analytic Review, 7 Pub. Libr. of Sci. 9 (2010) (discussing that, in a meta- analysis of 148 independent studies, social relationships (including living alone, marital status, perceptions of loneliness, and so on) were found to “signifcantly predict mortality” with an overall efect corresponding to “a 50% increase in odds of survival as a function of social relationships”); J. S. House et al., Social Relationships and Health, 241 Science 540, 541 (1988) (“Social relationships, or the relative lack thereof, constitute a major risk factor for health—rivaling the efect of well-established health risk factors such as cigarette smoking, blood pressure, blood lipids, obesity and physical activity . . . .”); Candyce H. Kroenke et al., Social Networks, Social Support, and Survival After Breast Cancer Diagnosis, 24 J. Clinical Oncology 1105 (2006) (66% increased mortality among breast cancer patients who were socially isolated, i.e., reported not having a “confdant”). 6 See Allison K. Hofman, Reimagining the Risk of Long-Term Care, 16 Yale J. Health Pol’y, L. & Ethics 147 (2016) (addressing care work burdens on family in the context of long-term care). This Article seeks to build on Hofman’s study of long-term care by applying the focus on family care takers to SUD, elaborating upon impacts care work has, and developing a welfare economic framework to balance social consequences with health impacts. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 199 be improved by broadening our perspective to encompass not only medical efects but also social consequences for patients and their families. Specifcally, this Article draws from a line of feminist legal scholarship problematizing “care work” in other contexts—in particular childcare and long-term care—to identify considerations other than health impacts that can afect the desirability of deputizing family. These include the potential for interference with existing family relationships, invisibility of the burden of care work on loved ones, and inequality in the distribution of burdens and benefts of care work. The Article then explores the real-world implications of such difcult-to-quantify considerations, arguing that their existence necessitates more cautious, research-informed regulation; drawing from literature on cost-beneft analysis to ofer a normative framework for the weighing of such considerations given incomplete evidence; and demonstrating the usefulness of that framework by applying it to lay out the case for adopting an “active choice” approach to deputizing family to obtain and share private information about SUD treatment. In short, the Article illustrates through its study of SUD how assessment of laws that deputize family in health care can be improved by considering the interference with family relationships, invisible burdens, and inequality entailed in some such laws. The Article then touches upon implications for deputizing family and the development of family law beyond health care. The Article proceeds in four parts. Part II ofers background and motivation. It shows how the addictions crisis and associated “drug war” is a ready topic through which to explore laws that deputize family because laws in this domain increasingly use family as a regulatory tool and because family are a particularly potent tool for diseases of despair such as addiction. Part III draws from existing scholarship on care work in other contexts to develop consequential normative considerations for assessing laws that deputize family that include considerations beyond direct health impacts. It argues that while health impacts are of course a primary consequential concern, when weighing laws that deputize family we must also consider the potential for interference with family relationships, and the potential invisibility of care work, the potential inequality of care work. Part IV explores implications. In light of the behavioral “knowledge problem,” it may be difcult to know for sure whether 200 Lawrence social consequences like those identifed in Part III outweigh potential health impacts to counsel against (or in favor of) any particular reform. As a frst step, new laws deputizing family should include information-gathering provisions to enable ongoing assessment of any social and health impacts that might support subsequent revision, and policymakers should be hesitant to adopt reforms that may interfere with family relationships without an evidentiary basis for believing that such interference is medically justifed. Furthermore, “break-even” analysis employed to incorporate hard- to-quantify variables into cost-beneft analysis in administrative law and regulation can be used to account for social consequences. Part IV shows how employing this approach supports a change to the choice architecture of consent to disclosure of protected SUD health information; patients should be given an “active choice” about whether they consent to disclosure of their information to loved ones. As compared to an “opt in” approach that favors isolation by default, such an active choosing regime recognizes and encourages underlying family relationships, brings family burdens to light, and mitigates inequality in access to and burdens of family support. Finally, the conclusion summarizes and discusses implications beyond substance use disorder and beyond health care. While the Article’s launching-of point and focus is the increasing deputization of family in the “drug war,” its narrative framework and discussion ofer broader insights. Its normative approach is broadly applicable, though additional variables for break-even analysis will depend on context. More fundamentally, the “deputizing” frame that emerges from a focus on the utilization of family as a regulatory tool in public health helpfully collapses the public/private distinction that has contributed to invisibility of care work in other contexts, but problematically may do so by bringing all family life into the “public” sphere.
II. Loved Ones as a Regulatory Tool in Public Health: the Case of SUD
A. Leverage Points for Regulating SUD Health law scholarship traditionally separated, for purposes of analysis, laws’ impacts on health care cost, access, and quality (in addition to ethical considerations).7 Scholarship in public health
7 E.g., Einer R. Elhauge, Can Health Law Become a Coherent Field of Law, 41 Wake VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 201 in recent years has shown us that we must consider also the social determinants of health and the impact of health laws on harm reduction.8 Thus, analyzing the consequences of law for health or a disease requires at least considering a law’s impacts on social determinants, harm reduction, access to health care, quality of care, and cost. In addressing SUD as with other chronic illnesses, this framework for understanding a law’s potential impacts on health maps roughly onto four key leverage points at which laws seek to or foreseeably change behavior and outcomes. These leverage points are prevention, harm reduction, access, and quality.9 First, prevention. The likelihood of contracting addiction in the frst place, which might be thought of as a person’s baseline “health,” is a function not only of their vital characteristics but also of their behaviors, access to transportation, housing, and other social determinants. One engrained legal efort at reducing the risk of addiction is criminal prohibition on drug use and sale associated
Forest L. Rev. 365, 379 (2006) (describing textbook separation of cost, access, and quality, as well as ethics or autonomy, as considerations in health law). 8 See generally Nancy E. Adler et al., Addressing Social Determinants of Health and Health Inequalities, 316 JAMA 1641 (2016); Mary C. Brucker, Social Determinants of Health, Nursing for Women’s Health 7 (2017); Victor R. Fuchs, Social Determinants of Health: Caveats and Nuances, 317 JAMA 25 (2017). Harm reduction can be conceptualized within “quality,” and is included under the umbrella of “health impacts” in the framework I utilize below. However, it is valuable to recognize the distinct importance of harm reduction because “quality” in this context can too easily be assumed to mean “quality of medical care,” i.e., to refer only to the treatment received from the provider itself. 9 Analyzing the legal framework for regulating any chronic illness by addressing impacts on risk of disease, the harms of disease, access to treatment, and quality of treatment does not track perfectly with the underlying health concerns of social determinants, harm reduction, access, quality, and cost. Social determinants of health impact every leverage point, from contraction of disease to quality of treatment. And “cost” is not a single decision-making or leverage point, but rather a consideration distinct from health that must be accounted for in evaluating the efectiveness of a legal intervention at any such point. Under conditions of scarcity, where funds are fnite, it is particularly important to consider cost as a “pro” or “con” of any given regulatory approach, in addition to other considerations discussed below including health impacts and social consequences. In such a case, “cost” in dollars can be roughly translated into “opportunity cost” in terms of foregone alternative policies or eforts. See Matthew J.B. Lawrence, Procedural Triage, 84 Fordham L. Rev. 79, 99 (2015) (discussing this state of afairs). 202 Lawrence with the “drug war,”10 but housing policy, early intervention eforts, medical prescribing and reimbursement policy, and insurance coverage should not be overlooked as they play a signifcant role.11 For example, it is now well understood that a legal framework that makes it more proftable for providers to treat apparent pain with a simple opioid prescription than with more time-intensive approaches contributes signifcantly to the spread of addiction.12 Second, harm reduction is an additional point of leverage at which laws infuence behavior to impact SUD outcomes. Some laws seek to reduce the risk of fatal overdose, infection, or other harms associated with addiction. Laws facilitating naloxone distribution are a positive example of such harm reduction;13 by making it more likely bystanders or frst responders have access to this overdose- reversing drug, such laws reduce the likelihood that an overdose is deadly. But other laws arguably exacerbate the harms associated with addiction. Prohibitions on drug use may push suferers to use in secret and unsafe environments, increasing the risk of infection or
10 See Benjamin Levin, Guns and Drugs, 84 Fordham L. Rev. 2173, 2174 nn. 3–4 (2015) (collecting sources problematizing the “war on drugs”). 11 See generally Richard C. Boldt, Drug Policy in Context: Rhetoric and Practice in the United States and the United Kingdom, 62 S.C. L. Rev. 261 (2010) (comparing both historical and recent drug policies between the United States and Britain); Sara Gordon, The Use and Abuse of Mutual-Support Programs in Drug Courts, U. Ill. L. Rev. 1503 (2017) (highlighting drug courts as an important but incomplete tool in drug addiction eforts); Laurie C. Malkin, Comment, Troubles at the Doorstep: The Fair Housing Amendments Act of 1988 and Group Homes for Recovering Substance Abusers, 144 U. Pa. L. Rev. 757 (1995) (encouraging group homes for recovering substance addicts despite community opposition); Ellen Weber, Equality Standards For Health Insurance Coverage: Will the Mental Health Parity and Addiction Equity Act End the Discrimination?, 43 Golden Gate U. L. Rev. 179 (2013) (explaining the prohibition of discriminatory health insurance coverage for persons with mental health and substance use disorders in large employer health plans). 12 E.g., Beth Han et al., Prescription Opioid Use, Misuse, and Use Disorders in U.S. Adults: 2015 National Survey on Drug Use and Health, Annals of Internal Med. (2017), https://www.doh.wa.gov/Portals/1/Documents/2300/2017/ AnnalsInternalMed.pdf (discussing role of prescription opioid availability and misuse); Katie Thomas & Charles Ornstein, Amid Opioid Crisis, Insurers Restrict Pricey, Less Addictive Painkiller, N.Y. Times (Sept. 17, 2017), https://www. nytimes.com/2017/09/17/health/opioid-painkillers-insurance-companies. html (“Opioid drugs are generally cheap while safer alternatives are often more expensive . . . doctors are given incentives to use less expensive treatments that provide fast relief.”). 13 Ariz. Dep’t of Health Servs, 50 State Review on Opioid Related Policy 26−29 (2017) (providing overview of such laws). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 203 unsupervised overdose.14 Third, laws impact access to care. Access to treatment for SUD depends on the interaction of a person seeking treatment, having a way to pay for that treatment, and fnding a provider available. As an illustration, Medicaid reimbursement rates and conditions for inpatient treatment have an obvious impact on the availability of providers and, so, access to such treatment.15 Fourth, laws impact behavior and outcomes by infuencing the quality of treatment. This, in turn, infuences the likelihood and length of recovery for one who is able to access treatment. Laws directly limiting or encouraging Medication Assisted Treatment (“MAT”) have an impact on quality, because studies show MAT has positive outcomes relative to other forms of treatment.16 Other laws play a more subtle role. Current regulatory guidance interpreting the Anti-Kickback Statute makes it difcult (though not impossible) for providers to ofer free transportation to get patients to treatment.17 Yet transportation is a factor in adherence to treatment and so quality.18
14 Cf. Leo Beletsky et al., The Law (and Politics) of Safe Injection Facilities in the United States, 98 Am. J. Pub. Health 231, 232 (2008) (“In multivariate analyses of an IDU cohort in Vancouver, S[afe ]I[njection ]F[acilities] use was negatively associated with needle sharing . . . and positively associated with less frequent reuse of syringes . . . .”). 15 See Note, Congressional Intent to Preclude Equitable Relief – Ex Parte Young After Armstrong, 131 Harv. L. Rev. 828, 832 (2018) (“The signifcance of the Armstrong Court’s holding for the Medicaid providers seeking to enforce the Medicaid Act was clear: their claims could not move forward”); Peter Cunningham & Ann O’Malley, Do Reimbursement Delays Discourage Medicaid Participation By Physicians?, Health Aff.: Health Aff. Blog (Jan. 1, 2009), https://www.healthafairs.org/doi/full/10.1377/hlthaf.28.1.w17#R3 (“Low Medicaid reimbursement rates relative to those of Medicare and private payers are usually considered to be the primary reason for low physician participation in Medicaid.”). 16 See W. Va. Dept. of Health and Human Servs., No. 11-W-00307/3, West Virginia Continuum of Care for Medicaid Enrollees with Substance Use Disorders 7 tbl.1 (2017) (Sec. 1115 Waiver to expand Medicaid reimbursement to IMD with fewer than 16 beds); Luis Sordo et al., Mortality Risk During and After Opioid Substitution Treatment: Systematic Review and Meta-Analysis of Cohort Studies, 357 BMJ 1, 12 (2017). 17 See 42 C.F.R. § 1001.952(bb)(1)(i-v) (2018) (incorporating the language from: Medicare and State Health Care Programs: Fraud and Abuse; Revisions to the Safe Harbors Under the Anti-Kickback Statute, 81 Fed. Reg. 88368 (Dec. 7, 2016) (to be codifed at 42 C.F.R. pts. 1001 and 1003)). 18 See, e.g., Samina T. Syed et al., Traveling Towards Disease: Transportation Barriers to Health Care Access, 38 J. Community Health 976 (2013). 204 Lawrence
B. Explicit Deputization The United States public health regulatory framework for addressing the addictions crisis uses many traditional regulatory tools. These include information campaigns, prohibition of some substances and regulation of others in an efort to reduce consumption, and partially-subsidized health care for some suferers.19 Increasingly, however, eforts to prevent, treat, and reduce the harms of drug addiction work through loved ones, explicitly using family members as a regulatory tool to infuence the behavior of their loved ones. 20 That is, the law deputizes family in achieving public health ends.21
19 See Nabarun Dasgupta et al., Opioid Crisis: No Easy Fix to Its Social and Economic Determinants, 108 Am. J. Public Health 182 (2018) (discussing aspects of framework); Fernando D. Simoes, Paternalism and Health Law: Legal Promotion of a Healthy Lifestyle, 4 Eur. J. Risk. Reg. 347, 356–65 (2013) (surveying and evaluating traditional tools of public health regulation in the context of tackling obesity). 20 This Article uses the defnition of “family” articulated in SAMHSA’s family therapy treatment protocol: “While the defnition of family may change according to diferent circumstances” it includes “traditional families,” “extended families,” and “elected families, which are self-identifed and are joined by choice and not by the usual ties of blood, marriage, and law” such as godparents or close friends. In other words, “[f]or practical purposes, family can be defned according to the individual client’s closest emotional connections.” U.S. Dep’t of Health and Human Servs., Treatment Improvement Protocol 39, Substance Abuse Treatment and Family Therapy, at xvi, 2 (2015). 21 By “deputize” this Article means intentionally or foreseeably using a third party to infuence a subject’s behavior. This may include laws that empower/ disempower third parties with formal legal responsibilities or obligations as well as laws that infuence the incentives of third parties, encouraging them to intervene to alter others’ behavior. In seeking to capture pragmatically the breadth of situations in which the law utilizes third parties as a regulatory tool, this understanding is intentionally broader than the traditional understanding of a sherif “deputizing” some locals when need/emergency pressed. Cf. Steven Lubet, The Forgotten Trial of Wyatt Earp, 77 U. Colo. L. Rev. 1, 20 n.76 (2001) (describing signifcance in trial of the fact that while Earp had formally deputized his brothers, Doc Holliday may not have actually been deputized “when he joined Virgil Earp’s posse”). Rather, its use of the term is closer to the use in federalism scholarship on federal laws that “deputize” states. E.g., David R. Hodas, Enforcement of Environmental Law in a Triangular Federal System: Can Three Not Be a Crowd When Enforcement is Shared by the United States, the States, and Their Citizens?, 54 Md. L. Rev. 1552, 1571 (1995) (“As a result, essentially all the modern major environmental laws provide uniform, minimum national standards with the states ‘deputized,’ to a greater or lesser degree, to do the permitting and enforcing for the federal government.”). See generally Shirly Lin, Comment, States of Resistance: The Real ID Act and Constitutional Limits Upon VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 205
Prevention: Prohibition laws are a core, controversial aspect of current federal and state eforts to reduce the harms of SUD.22 Laws that forbid or restrict use or sale of certain addictive substances seek to prevent people from developing SUD by preventing misuse. But in some cases, such laws seek to enlist family in prevention-by- prohibition by exposing them to liability for failing to intervene in and halt prohibited uses or sales in their home or presence. Drug possession laws and associated civil forfeiture penalties are an example, putting a person’s home at risk if she fails to halt certain drug activity engaged in by those staying with her, as a means to use the homeowner to seek to alter her co-occupants’ behavior.23 Harm reduction: Eforts to reduce the harm of SUD, too, increasingly operate through loved ones. Naloxone is a life-saving drug that is relatively easy to administer and can prevent the death of a person who is overdosing from opioids. Understandably, increasing access to and utilization of Naloxone is a signifcant focus of regulators and reformers. One way this is done is by prescribing Naloxone prophylactically not only to those sufering from SUD but also likely bystanders to an overdose, including family members or friends. Hence the American Medical Association’s guidance encouraging providers to prescribe naloxone to “a family member or close friend” of SUD patients.24 Consistent with that recommendation, many states have standing orders that explicitly identify “family members” as eligible for third-party prescriptions of Naloxone.25
Federal Deputization of State Agencies in the Regulation of Non-Citizens, 12 N.Y. City L. Rev. 329 (2009) (exploring the post-9/11 deputization of state and local authorities to investigate and detain undocumented immigrants). For refections on the narrative implications of labeling even family members who the law foreseeably enlists in achieving government ends as “deputies,” see infra Part V. 22 See Levin, supra note 10 (collecting sources expressing skepticism about “war on drugs”). 23 21 U.S.C. § 844(a) (1994 & Supp. III 1997); 42 Pa. Stat. and Cons. Stat. Ann. § 5803 (West 2018); (discussing civil forfeiture penalty). 24 Am. Med. Ass’n Opioid Task Force, Help Save Lives: Co-Prescribe Naloxone to Patient’s at Risk of Overdose, End the Epidemic (2017), https://www.end- opioid-epidemic.org/wp-content/uploads/2017/08/AMA-Opioid-Task-Force- naloxone-one-pager-updated-August-2017-FINAL-1.pdf. 25 E.g., Pa. Dep’t of Health, Standing Order DOH-002-2018, Naloxone Prescription for Overdose Prevention (2018). See generally Legal Science, Naloxone Overdose Prevention Laws, Prescription Drug Abuse Policy System (July 1, 2017), http://pdaps.org/datasets/laws-regulating- administration-of-naloxone-1501695139 (providing a 50-state survey of 206 Lawrence
Treatment: One of several challenges to providing treatment to those sufering from SUD is that the nature of the illness, coupled with the stigma surrounding it, makes suferers less likely to pursue treatment voluntarily.26 Involuntary treatment laws are a controversial attempt to address this challenge. Such laws create a mechanism through which SUD suferers can be forced into treatment without their consent. For present purposes, it sufces to note that such laws often explicitly deputize family, limiting the class of persons eligible to initiate the involuntary treatment process to guardians and family members.27 Quality: Finally, treatment protocols that call for incorporating family into the recovery process are an example of policies that seek to impact the quality of care through the behavior of family members. For example, the “Recovery Oriented Community” program calls upon family members to take a formal, active, and ongoing role in their loved one’s recovery,28 in recognition of years of research indicating that social relationships such as family involvement are a signifcant positive infuence on recovery.29 Family members are actively incorporated in developing the treatment protocol and enrolled in a communication program through which they and
Naloxone access laws). 26 Confdentiality of Substance Use Disorder Patient Records, 82 Fed. Reg. 6052, 6053 (Jan. 18, 2017) (to be codifed at 42 C.F.R. pt. 2) (noting concern that “individuals with substance use disorders [fail to] seek needed treatment” due to concern about negative consequences of the disclosure of such treatment to employers, landlords, law enforcement, and others). 27 E.g., S.B. 391, Gen. Assemb., 2017−18 Reg. Sess. (Pa. 2017) (“A spouse, relative or guardian of the respondent must fle the [involuntary treatment] petition.”). Indeed, such laws are occasionally referred to as “Casey’s Laws,” named after the frst such law in Kentucky which was motivated in part by one family’s story of their son dying of a drug overdose after the legal system rebufed the family’s eforts to force their son into involuntary treatment. For an example of the use of this term and discussion of the Kentucky law, see Bradley J. Stefen, Battling the Heroin Epidemic with Involuntary Treatment, 12 J. L. & Soc. Deviance 181, 204−13 (2016). 28 Lori Simons et al., A Promising Approach for Families of and Young Adults with Opioid-Related Disorders: The Recovery Oriented Community (ROC) Program, 2 J. Drug Abuse 1 (2016). 29 See supra note 5 and accompanying text (discussing the impact of social relationships on recovery in other contexts); Ellen M. Weber, Bridging the Barriers: Public Health Strategies for Expanding Drug Treatment in Communities, 57 Rutgers L. Rev. 631, 653 n.79 (2005) (“Sustaining recovery is also more difcult for individuals who do not have access to . . . a family support system.”). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 207 medical providers maintain contact through telephone, text, online support, and weekly meetings.
C. Implicit Deputization In many areas the deputization of family is implicit rather than explicit, though no less important. Family are on the front lines of each leverage point of SUD—prevention, harm reduction, treatment, and recovery, though their role as an aspect of our public health system is sometimes not appreciated.30 Family can discourage substance misuse, help to identify and encourage treatment for comorbidities of addiction such as mental illness, and help to identify and encourage early treatment of SUD, thereby reducing the risk and severity of addiction.31 Moreover, for those who sufer from SUD, family can play a key role in harm reduction. Family may provide relatively safe housing and, often, a place to use drugs with some sort of supervision and help nearby.32 Similarly, family can play a key role in facilitating access
30 See U.S. Dep’t of Health & Human Servs., Facing Addiction in America: The Surgeon General’s Report on Alcohol, Drugs, and Health 1-3 (2016) [hereinafter Surgeon General’s Report] (providing exhaustive list of “public, private, and voluntary entities that contribute to the delivery of essential public health services within a jurisdiction” and make up the “Public Health System” but not mentioning role of family in provision of such services); see also id. at 1-4 (same). 31 Jefrey M. Jones, Poll: Only About Half of Addicted Family Members Sought Treatment, Gallup News Serv. (Aug. 18, 2006), http://news.gallup.com/poll/24196/ poll-only-about-half-addicted-family-members-sought-treatment.aspx (showing that pressure from family was among the most common factors in SUD patients’ decisions to seek treatment). 32 E.g., Sarah M. Bagley et al., Overdose Education and Naloxone Rescue Kits for Family Members of Individuals Who Use Opioids: Characteristics, Motivations, and Naloxone Use, 36 Substance Abuse 149, 151 tbl. 1 (reporting successful Massachusetts program to train family members in use of naloxone); Alexandra Rockey Fleming, For Families of Addicts, Narcan Has Truly Been a Lifesaving Drug, Wash. Post (Jan. 7, 2018), https://www.washingtonpost. com/national/health-science/for-families-of-addicts-narcan-has-truly-been- a-lifesaving-drug/2018/01/05/75ffb206-d469-11e7-b62d-d9345ced896d_ story.html?utm_term=.03703597a46d (telling story of mother who revived her 22-year-old son from an overdose in the home they shared using Narcan; he then entered an inpatient treatment program); Anna V. Williams et al., Training Family Members to Manage Heroin Overdose and Administer Naloxone: Randomized Trial of Efects on Knowledge and Attitudes, 109 Addiction 250 (2013) (reporting positive educational outcomes from take-home naloxone administration training). 208 Lawrence to treatment for those with SUD. Family may press suferers to seek treatment.33 They may help to arrange or apply for insurance coverage, or provide fnancial support where coverage is lacking.34 They help to fnd available (and covered) treatment and get their loved ones into such treatment.35 Finally, SUD patients often invite their family to play a key role in maintaining recovery from SUD as well. Recovery may be aided by not just traditional medical care but transportation (for possible probation check-ins, MAT, or work), housing, meaningful employment or other engagement, help navigating the criminal justice system, child care, and above all community. Whether motivated by love, altruism, or even flial support requirements, family provide all of these things.36
33 See W.R. Miller et al., Engaging the Unmotivated in Treatment for Alcohol Problems: A Comparison of Three Strategies for Intervention Through Family Members, 67 J. Consulting & Clinical Psychol. 688 (1999). Particularly for adolescents “family pressure may play an important role in getting adolescents to enter, stay in, and complete treatment.” Surgeon General’s Report, supra note 30, at 4-14. 34 E.g., Liz Navratil, Tell Them My Story: Ross Woman’s Obituary Sheds Light on Addiction, Pittsburgh Post-Gazette (Jan. 22, 2017), http://www.post- gazette.com/news/overdosed/2017/01/22/Tell-them-my-story-Maybe- it-would-help-somebody-Ross-Pittsburgh-overdose-obituary-addiction/ stories/201701220121 (describing fatal overdose of young woman while she and her mother were working to fnd a treatment facility covered by their insurance after calendar-year change in insurance led to dropped coverage at originally-planned treatment center); Jeanne Whalen, After Addiction Comes Families’ Second Blow: The Crushing Cost of Rehab, Wall Street J. (Mar. 8, 2018), https://www.wsj.com/articles/after-addiction-comes-families-second- blow-crushing-cost-of-rehab-1520528850. 35 For a story of a mother buying heroin for her daughter to help wean her during a self-detox in order for her to be admitted to a treatment program that did not accept those in active addiction, see Anonymous, Why I Bought My Daughter Heroin, BBC News (Mar. 10, 2017), http://www.bbc.com/news/ magazine-39212295. 36 “[F]indings from focus groups of counselors in rural areas noted . . . reliance on friends or family for transportation.” U.S. Dep’t of Health & Human Servs., The President’s Commission on Combating Drug Addiction and the Opioid Crisis 34 (2017) [hereinafter Commission Report]. On the reasons family engage in care work see Hofman, supra note 6, at 175 (discussing reasons family members engage in care work); “All ffty states have statutes that obligate certain adults to care for or fnancially support certain other family members.” Katherine C. Pearson, Filial Support Laws in the Modern Era: Domestic and International Comparison of Enforcement Practices for Laws Requiring Adult Children to Support Indigent Parents, 20 Elder Law J. 269, 270 (2013). However, these are limited, for example, while “parents can [] be VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 209
It would be a mistake to think of this range of family involvement in SUD prevention, harm reduction, treatment, and recovery as independent of law, separate from and outside of our public health framework for regulating (and aspirationally reducing the cost of) SUD. Quite the opposite, our legal framework calls upon family to serve this role in ways that are at least foreseeable, if not intentional. SUD is an example of a chronic illness for which resources available through traditional public health, health care, and government entities are, at this writing, tragically insufcient. Institutional actors do not come close to ensuring that those who need treatment for SUD receive it; according to recent estimates, roughly 20% of the 20 million who need treatment for SUD receive it.37 As a result, for many suferers, loved ones are both the frst responders and the last resort. Meanwhile, family members are not only a stopgap; they are well positioned to assist with many aspects of prevention, harm reduction, treatment, and recovery. Family members are often close to SUD patients which brings a special perspective and insight into their loved ones’ behaviors and needs.38 Moreover, the emotional connection that defnes “family” makes family members particularly well suited to provide the community that many see as essential to preventing and treating addiction.39 And family can be (even if they
obligated to pay support for adult-aged children . . . usually that obligation is tied to a continuing disability that preexisted age eighteen.” Id. 37 “[O]nly one in fve people who currently need treatment for opioid use disorders is actually receiving it.” Surgeon General’s Report, supra note 30, at III. 38 See Silverman, supra note 4, at 9 (“To care well, Kittay argues, caregivers must not only go through the motions of care, but they must also care about the person who depends on them . . . to do a good job with the rational, arduous, daily labor of caring, an ‘afective bond’ is necessary.”); id. at 96 (identifying three comparative advantages of parents in assisting in a child’s treatment: “a familiarity with their child’s developmental trajectory and current behaviors . . . the continuous therapeutic opportunities ofered by the activities of daily life, and their own biological kinship with the child, including shared personality traits and milder forms of the same symptoms”); id. at 137 (“As parents enter into professional areas of authority they do so by claiming that their love helps them determine how best to understand and treat their children. These claims about love are strong and sometimes risky.”). 39 See Dasgupta et al., supra note 19, at 184 (“[R]esearchers agree that such structural factors as lack of economic opportunity, poor working conditions, and eroded social capital in depressed communities, accompanied by 210 Lawrence are not always) powerful sources of acceptance.40 As a result of the confuence of a shortage of social services and family’s unique ability to assist in addressing SUD, it is difcult to identify a way in which family currently assist their loved ones with SUD that is not predictably infuenced by one or more aspects of our existing legal framework. Among other legal factors, the Anti-Kickback Statute limits providers’ ability to provide patients in recovery with free transportation and payer reimbursement policies that fail to compensate such arrangements often leave those in recovery with no way to obtain necessary, daily treatment, other than reliance on loved ones with legal access to a car.41 Shortages of Medicaid-eligible inpatient and outpatient treatment providers— itself a function of Medicaid reimbursement rates42—often leave family members with the choice to either pay out of pocket themselves for their loved ones’ care or see them go without care. Lack of housing and job support for those in recovery, 43 as a matter of logic and inevitable necessity, can leave family invested in their loved ones’ health as the patient’s last resort. The goal of this discussion has been to call attention to such implicit deputization and encourage researchers and policymakers
hopelessness and despair, are root causes of the misuse of opioids and other substances . . . .”) (quoting Nat’l Acad’s of Sci’s, Eng’g, and Med. et al., Pain Management and the Opioid Epidemic 1–9 (Richard J. Bonnie et al. eds., 2017)). 40 Cf. Silverman, supra note 4, at 236 (“Devotion is ideally an experimental procedure. It is especially so when, as parents often feel in the case of autism, it impels us to consider the object of our love as both a biological being, subject to manipulation and harm, and a person, precious and complete in his or her own right.”). 41 See Robert J. Baror, Transportation and the Anti-Kickback Statute: A Tortured Route with a New Safe Harbor, The Fed. Law., March 2015, at 18–20 (describing challenges entailed in providing transportation); Jefrey Samet et al., It’s Time for Methadone to Be Prescribed as Part of Primary Care, Statnews (July 5, 2018), https://www.statnews.com/2018/07/05/methadone-prescribed-primary- care/ (“Stigma and a not-in-my-backyard mentality resulted in the placement of a sizable number of methadone clinics in locations that were hard for many to reach.”). 42 See Armstrong v. Exceptional Child Center, Inc., 135 S. Ct. 1378 (2015) (discussing claim that low Medicaid reimbursement rates deterred provider participation). 43 See Richard Littlewood et al., Housing for People with Substance Use Disorders: One Size Does Not Fit All Tenants—Assessment of 16 Housing Services and Suggestions for Improvement Based on Real World Experience, 55 Community Mental Health J., 331 (2019). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 211 to be cognizant of it, not to catalog all instances of deputization. In these areas and the many others in which the law implicitly deputizes family, for those with loved ones who are in a position to be asked for help, the choice is not whether society will provide necessary services or not; the choice is whether it will do so through (usually paid) social workers, medical providers, and navigators or through (always unpaid) family members. As discussed in the next section, whether done implicitly or explicitly, the decision to deputize family is a weighty choice that implicates considerations beyond the health of the patient.
III. The Social Consequences of Deputizing Family The preceding discussion of the role of family in fghting SUD underscores the importance of directing resources toward family caretakers. Family support groups like Learn to Cope based in Massachusetts, The Partnership for Drug Free Kids, Al Anon, Shatterproof, and others could be supported and spread, and educational resources could be improved in quality and made more readily available.44 Moreover, funding directed specifcally to educating family members could ensure culturally competent
44 Twelve Massachusetts-area organizations ofering peer family support services are listed in the Massachusetts Organization for Addiction Recovery. Mass. Org. for Addiction Recovery, MOAR Mini-Guide with MOAR to Come 15 (2018), http://docs.wixstatic.com/ugd/8256b8_ c57f31e039d547cbb67e13fb84c6ceed.pdf. In other communities, such peer family support is not as readily available. See generally Addiction Resource Hub, https://resources.facingaddiction.org (last visited Nov. 5, 2018). As for the availability of resources, the self-professed struggles of noted addiction reformers and policy experts are illustrative. University of Pennsylvania addiction research psychologist and former Senior Scientist for the Ofce of National Drug Control Policy Dr. Thomas McLellan explains that despite his expertise he found fnding out how best to help care for a family member extremely difcult, observing “[i]f I don’t know, nobody else knows . . . . Where does a schoolteacher turn? How about a truck driver? How about a cop?” See How to Fix Rehab: Expert Who Lost Son to Addiction Has a Plan, nbcnews.com (Apr. 7, 2014, 5:18 AM), https://www.nbcnews. com/storyline/americas-heroin-epidemic/how-fix-rehab-expert-who-lost- son-addiction-has-plan-n67946. Similarly, founder and CEO of Shatterproof Gary Mendell explains how his family “fought to navigate the complex and confusing web of treatment programs and therapies” in trying to care for a family member with SUD. Gary Mendell, A Father’s Promise, History, Shatter Proof, https://www.shatterproof.org/about/history (last visited Feb. 2019). There are some excellent resources available, but particularly for a suferer or family member new to addiction and its treatment, availability of information does not equal access to information. 212 Lawrence resources by linking together families with similar backgrounds.45 Such eforts could make family more efective in supporting those with addiction while simultaneously reducing the personal fnancial and emotional burdens of providing such support. For some, this broader policy implication—that family of patients play a huge role in fghting disease and so are a promising target for resources, funding, and regulation—may not need further elaboration. It is important, however, to focus on the costs and benefts of deputizing family in fghting disease, for four reasons. First, family involvement may in some cases be a negative rather than a positive; it may do more harm than good. A stark example is that of an abusive spouse—the law should neither empower an abusive person nor force their spouse to rely on them for support or care in seeking treatment for illness.46 Teasing out the costs and benefts of deputizing family makes it possible to explore whether current and proposed regulatory approaches do more harm than good. Second, funding and manpower are fnite; this is particularly true for SUD. We must sometimes decide not only which laws or approaches are benefcial, but which are sufciently benefcial to justify the investment of scarce resources. Third, legal scholars evaluating the wisdom vel non of involuntary treatment laws have begun to explore behavioral, societal, and ethical costs of such laws independent of their medical impacts.47 This growing, fuller understanding of the implications of such laws is improved by exploring their impacts on the deputized family members as well.
45 Cf. 42 U.S.C. § 280i-1 (2018) (specifc provision for educating families in addressing autism). 46 See generally Symposium on Reconceptualizing Violence Against Women by Intimate Partners: Critical Issues, 58 Alb. L. Rev. 1193 (1995). 47 See Leo Beletsky et al., Expanding Coercive Treatment is the Wrong Solution for the Opioid Crisis, Health Aff.: Health Aff. Blog (Feb. 11, 2016), https:// www.healthafairs.org/do/10.1377/hblog20160211.053127/full/ (noting risk that threat of involuntary treatment will deter patients from seeking professional help); Leo Beletsky & Elisabeth Ryan, The Wrong Path: Involuntary Treatment and the Opioid Crisis, Crime Rep. (Aug. 16, 2017), https:// thecrimereport.org/2017/08/16/the-wrong-path-involuntary-treatment-and- the-opioid-crisis/ (involuntary treatment “shift[s] fnancial responsibility for substance use treatment from insurers directly to taxpayers”); Ish P. Bhalla et al., The Role of Civil Commitment in the Opioid Crisis, 46 J. L. Med. & Ethics 343 (2018) (discussing medical as well as ethical objections to involuntary treatment). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 213
Fourth, and fnally, for those who are interested not only in reducing the harms of SUD but also putting in place structures to better address the next such crisis (which may well also be related to SUD), there are lessons to be taken from the failures and successes of our policy response thus far to the overdose crisis. Unlike researchers and policymakers, sick people do not have the luxury of waiting on political processes or scientifc debates. Again, patients and their families are the frst responders for any illness and, unless and until government or institutional resources are brought to bear, the last resort. By better understanding this default, double-edged weapon in the public health arsenal it may be possible to design policies that make family better at the job that illness, indiference, or choice force them to do, or at least to avoid hampering family in such work when desired by their loved ones. The addictions crisis reveals numerous ideas, examples, and potential pitfalls that can serve as lessons for the future. Part A below discusses the health impacts of laws deputizing family to address SUD. Part B discusses the need to consider impacts beyond direct consequences on patient health, namely, the social consequences of deputization, then discusses such impacts that are particularly implicated by laws deputizing family: interference, invisibility, and inequality. The next Part will ofer and apply a framework for weighing such social consequences against health impacts in evaluating or crafting laws that deputize family from a welfare economic standpoint.
A. Health Consequences of Deputization In addressing a disease—particularly one as widespread, debilitating, and deadly as SUD—it is natural and appropriate to focus on the health impacts of any reform or regulatory tool. So it is understandable that most scholarship that focuses on the role of family in the treatment of disease generally and in the treatment of SUD in particular has focused on medical impacts rather than on other potential benefts or costs of deputizing family.48 This is in
48 See D.W. Best et al., Patterns of Family Confict and Their Impact on Substance Use and Psychosocial Outcomes in a Sample of Young People in Treatment, 9 Vulnerable Child. & Youth Stud. 114, 114–22 (2014); Viviana E. Horigian et al., A Cross-Sectional Assessment of the Long Term Efects of Brief Strategic Family Therapy for Adolescent Substance Use, 24 Am. J. on Addiction 637 (2015) (discussing the specifc outcomes of therapy focused on familial intervention and strengthening of familial bond in the aftermath of substance use). See generally Holt-Lunstad et al., supra note 5. Family Law textbooks address drug and alcohol use insofar 214 Lawrence contrast to scholarship on the provider-patient relationship, which has problematized laws that deputize doctors in bringing about particular policy outcomes.49 This health-focused research has tended to fnd that social relationships are a signifcant positive for SUD outcomes,50 though
as they may be implicated in divorce or custody proceedings but do not directly address the role or use of the family in prevention and treatment of SUD, chronic illness, or public health. See generally John DeWitt Gregory et al., Understanding Family Law (4th ed. 2013); Ira Mark Ellman et al., Family Law: Cases, Text, Problems (5th ed. 2010). 49 See generally Janet L. Dolgin, Physician Speech and State Control: Furthering Partisan Interests at the Expense of Good Health, 48 New Eng. L. Rev. 293, 294, 318−19 (2014) (describing Drudge Report headline that “Obama Deputizes Doctors” in response to Executive Order interpreting ACA provision as leaving doctors free to ask patients about guns and gun safety” (citing Afordable Care Act, 42 U.S.C. § 300gg-17 (2012)); Carol Gosain, Case Note, Protective Custody for Fetuses: A Solution to the Problem of Maternal Drug Use? Casenote on Wisconsin ex rel. Angela v. Kruzicki, 5 Geo. Mason L. Rev. 799, 817 (1997) (discussing state law, complaining that “[b]y ‘deputizing’ doctors, the state interferes in the physician-patient relationship”); Derk B.K. VanRaalte IV, Note, Punitive Policies: Constitutional Hazards of Non-Consensual Testing of Women for Prenatal Drug Use, 5 Health Matrix 443, 455 (1995) (criticizing requirement that physicians disclose pre-natal drug test results as “efectively ‘deputiz[ing] doctors to be police informers’”); Kathleen M. Sullivan, The Justices of Rules and Standards, 106 Harv. L. Rev. 22, 34 (1992) (describing requirements that physicians inform a woman seeking abortion of certain information as “deputiz[ing] doctors” in framing choice); id. at 94 (noting that Casey essentially held that “the state could no more deputize doctors than husbands as anti-abortion advocates”). 50 Surgeon General’s Report, supra note 30, at 3-11 (“A number of family- focused, universal prevention interventions show substantial preventive efects on substance use.”); id. at 4-30 (“Mainstream health care has long acknowledged the benefts of engaging family and social supports to improve treatment adherence and to promote behavioral changes needed to efectively treatment many chronic illnesses. This is also true for patients with substance use disorders.”); id. at 4-25 (“Adherence to” naltrexone “increases under conditions where it is administered and observed by a trusted family member.”); see Simons et al., supra note 28, at 1−2 (“Most treatment research indicates that a family component is necessary for treatment to be efective, particularly with opiate addicts aged 15 to 25 years old.”) (collecting sources); see also id. at 2 (describing study as indicating “that families play a crucial role in the recovery process for adults with concurrent disorders”); Dasgupta et al., supra note 19, at 184 (providing evidence that social isolation contributes to drug misuse and substance misuse disorder and, conversely, that “protective family and social structures generate resilience that mitigates negative impacts from the collision of economic hardship, substance use, and depression”) (collecting sources); U.S. Dep’t of Health and Human Servs., supra note 20, at 1 (“The family has a central role to play in the treatment of any health problem, including substance abuse.”); id. (“[E]vidence from the research that VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 215 scholars have questioned the health beneft of empowering family in specifc areas such as involuntary treatment.51 The fnding that family involvement has a salutary efect on SUD health outcomes is consistent with meta analyses addressing the health impacts of family involvement generally, which have found family to be a signifcant and positive social determinant of health.52 That said, none of these studies compared family support to other forms of social services, so the identifed benefts may indicate only that family may fll a void where other social services are lacking, not that family are better than other more traditionally “public” sources of social services at promoting health when both are available.53
B. Social Consequences of Deputization It is appropriate for health impacts to be a primary focus of inquiry in consequential evaluation of laws directed at disease, but they should not be the only impacts considered. Such laws can have social, educational, employment, and fnancial consequences beyond their medical impacts. For a concrete example of such a “social consequence” of health care policy, look no further than the well-documented phenomenon of medical bankruptcy: bankruptcies that result ultimately from our regulatory framework for managing illness.54
has been conducted . . . indicates that substance abuse treatment that includes family therapy works better than substance abuse treatments that do not . . . .”) (collecting sources); U.S. Dep’t of Health and Human Servs., Treatment Improvement Protocol 38, Integrating Substance Abuse Treatment and Vocational Services, at xv (2000) (“Years of research show that the best predictors of successful substance abuse treatment are gainful employment[,] adequate family support[, and] lack of coexisting mental illness . . . .”); cf. Kay Hymowitz, Opioid Deaths Are Surging Among Single and Divorced Americans, Especially Men, Inst. for Family Studies (Nov. 6, 2017), https://ifstudies.org/blog/opioid-deaths-are-surging-among-single- and-divorced-americans-especially-men (fnding lower overdose rate among married population than non-married population, but noting that assuming causative connection would be problematic). 51 See, e.g., Dasgupta et al., supra note 19 (arguing for an approach that addresses the root causes of the opioid crisis). 52 See sources cited supra note 5. 53 Cf. Martha Fineman, The Autonomy Myth: A Theory of Dependency, at xviii (2004) (“It is very important to understand the roles assigned to the family in society—roles that otherwise might have to be played by other institutions, such as the market or the state.”). 54 See Matthew J. Lawrence, Health Insurance’s Social Consequences Problem and How to Solve It, Harv. L. & Pol’y Rev. (forthcoming 2019) (collecting and 216 Lawrence
A strand of feminist legal scholarship problematizing “care work” largely in the context of child care and long-term care for the elderly—unpaid labor by family caring for one another— has unpacked social consequences that such labor implicates independent of health impacts.55 These considerations apply as well to laws that deputize family in fghting SUD, in many cases raising the possibility of new objections to or problems with such laws as discussed below. Understood in welfare economic terms, such considerations include: the potential for interference with the underlying family relationship; the invisibility of and lack of compensation for or societal recognition of the care work; and the inequality of relying on care work, particularly when its performance or availability is heterogeneous across genders, race, or class.
1. Interference It is prudent to proceed with caution in using existing family relationships as a regulatory tool because family relationships themselves can be endogenous to the law, that is, family relationships can be shaped by the law. As Fineman puts it, “[f]ar from being separate and private, the family interacts with and is acted upon by other societal institutions . . . the very relationship is not one of separation, but of symbiosis.”56 Indeed, a motivating insight of the feld of family law is that the formation of romantic partnerships and child rearing units is in some ways determined by legal recognition and treatment, so laws may be tailored to facilitate those relationships that society deems valuable.57
describing sources). 55 See Hofman, supra note 6, at 172−73 nn.125−29 (collecting sources and surveying); Anne L. Alstott, No Exit: What Parents Owe Their Children and What Society Owes Parents (2005) ; Fineman, supra note 53; Joan Williams, Unbending Gender: Why Family and Work Conflict and What to Do About It (2001); Sylvia A. Law, Women, Work, Welfare, and the Preservation of Patriarchy, 131 U. Pa. L. Rev. 1249 (1983); Katherine B. Silbaugh, Turning Labor into Love: Housework and the Law, 91 Nw. U. L. Rev. 1 (1996); Noah Zatz, Supporting Workers by Accounting for Care, 5 Harv. L. & Pol’y Rev. 45 (2011) 56 Fineman, supra note 53. For a multi-layered example of the interaction between legal and institutional arrangements, on the one hand, and afective relationships on the other, in the context of a particular disorder, see generally Silverman, supra note 4, at 1−5 (framing love as a complicated and sometimes problematic resource). 57 Fineman, supra note 53 (“It is very important to understand the roles assigned to the family in society—roles that otherwise might have to be played by other VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 217
The spousal evidentiary privilege serves as an enduring acknowledgement of this potential for the law to interfere with family relationships. This potential is a primary underlying rationale for the privilege. The reasoning is that if spouses could be compelled to testify against each other, then open communication between them would be chilled. So, courts provide an evidentiary privilege to such communications, protecting against disclosure in order to ensure that open communication between spouses is not deterred by the shadow of civil or criminal discovery.58 In the context of SUD, this concern can be thought of as one of interference. Supportive family relationships are desirable both in the abstract and for their generally positive impact on SUD outcomes.59 Laws that interfere with the formation or maintenance of such relationships—that make it more costly for those with SUD to maintain close contact with their loved ones—could carry an interference cost that might itself outweigh any hypothetical medical beneft. The collateral consequences of civil forfeiture drug laws are a concrete illustration of this problematic interference efect associated with certain forms of deputization. Criminal accessory laws can make families vulnerable to civil forfeiture actions against their homes for unlawful sales conducted by loved ones living with them. Several families in Philadelphia, for example, had their homes seized and were forced to vacate after the police arrested non-minor children on
institutions, such as the market or the state.”); Linda McClain, The Place of Families: Fostering Capacity, Equality, and Responsibility 3, 8 (2006) (“[F]amilies have a place in the project of forming persons into capable, responsible, self-governing citizens. . . . [G]overnment properly takes an interest in families in light of the goods associated with families, the functions that families serve, and the political values at stake.”); Vivian Hamilton, Will Marriage Promotion Work?, 11 J. Gender, Race & Justice 1 (2007) (providing survey of government policies promoting marriage). 58 See Trammel v. United States, 445 U.S. 40, 44 (1980) (“The modern justifcation for this privilege against adverse spousal testimony is its perceived role in fostering the harmony and sanctity of the marriage relationship.”); see also Development in the Law: Privileged Communications, 98 Harv. L. Rev. 1450, 1579 (1985) (“Advocates of the privileges argue that privileges encourage intrafamily communications that are more valuable to the family than the evidence shielded from the courts is to society.”); cf. Julia Cardozo, Note, Let My Love Open the Door: The Case for Extending Martial Privileges to Unmarried Cohabitants, 10 U. Md. L.J. Race Religion Gender & Class 375 (2010) (arguing for expansion of marital communications privilege to unmarried cohabitants). 59 Supra Part III.A. 218 Lawrence possession and sale charges that the families had permitted to live with them. Eventually, the police permitted the families to return to their homes—but allegedly only upon the condition that they would not let their SUD-patient loved ones return.60 Deputization and interference are both crystallized in this example. Drug laws conscript family members in the efort to prevent SUD by prohibition by subjecting them to penalties if they do not themselves ensure compliance with such prohibitions within their homes. Regardless whether this deputization carries medical benefts or costs, it also interferes directly with family relationships by discouraging suferers from seeking housing with loved ones, and discouraging loved ones from permitting suferers to live with them while using. By doing so, in turn, drug laws may undercut the ability of the family home to act as a sort of de facto safe injection site, potentially undermining health in turn.61
2. Invisibility A second consideration presented by laws that deputize family is that the burdens of care work are often invisible, neither compensated nor recognized as a valuable form of work. In turn, because such eforts are invisible, policymakers can easily fail to take burdens on care workers into account. Benefts programs, for example, often fail to acknowledge the value, time, or efort of care work.62 In the context of childcare, the care work literature has “made compelling arguments for state support of caregiving based on the idea of caregiving as a public responsibility, a public good, a basic
60 See Class-Action Complaint for Declaratory and Injunctive Relief at ¶ 116, Sourovelis v. City of Philadelphia, 103 F. Supp. 3d 694 (E.D. Pa. 2015) (No. 14-4687) (alleging that the ADA “informed Mr. Sourovelis that in order for his house to be unsealed so his family could return home, he and his wife would have to agree to a number of conditions, including agreeing that [their son] would not be permitted to enter his home for any reason for an indefnite period of time”). See generally Sourovelis v. City of Philadelphia, 103 F. Supp. 3d 694 (E.D. Pa. 2015). The case was later the subject of a civil lawsuit that partially settled. See Jeremy Roebuck, D.A.’s Ofce Reaches Partial Settlement in Forfeiture Suit, The Philadelphia Inquirer (June 24, 2015), http:// www.philly.com/philly/news/20150625_Phila__District_Attorney_reaches_ partial_settlement_in_civil_forfeiture_suit.html?mobi=true. 61 See Jennifer Ng et al., Does Evidence Support Supervised Injection Sites?, 63 Canada Fam. Physician 866 (2017) (providing data supporting the positive outcomes of safe injection sites); cf. supra Part II.A (collecting sources reporting positive results from providing family members with access to Naloxone). 62 See Zatz supra note 55, at 46; see also Hofman, supra note 6, at 196. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 219 household need, or in order to help preserve women’s attachment to the workplace.”63 Moreover, when it comes to helping in a loved one’s battle with illness, the invisibility of care work can mean an under-supply of educational resources and supports, which can leave care workers to teach themselves, even where minimal educational resources and support could go a long way in reducing the burdens on such care givers and improving the quality of their help.64 Helping a loved one in his or her medical struggle can be no less burdensome than child rearing or long-term care.65 For example, family caregivers of terminal cancer patients may sufer from “substantial psychological, occupational and economic burdens associated with caregiving.”66 Stenberg’s literature review of 164 articles found similar burdens on caregivers of cancer patients.67 The burdens of care work are weighty in the treatment of SUD as well, though not yet studied as signifcantly. Caring for a loved one with SUD can be personally, psychologically, emotionally, and fnancially devastating—even if it also can be tremendously rewarding.68 Notably, many of these impacts stem not from having a loved one who is ill, but from the care work that comes with the diagnosis.69 As discussed above, the work loved ones do includes
63 Hofman, supra note 6, at 172−73 nn.125−130 (collecting and surveying sources). 64 Silverman, supra note 4, at 94 (describing “parents during the 1960s and 1970s who often found themselves with few resources other than each other in learning to treat their children”); id. at 96 (“[U]ntil the professional community can ofer us more efective programs, we will often have to take matters into our own hands . . . .”). 65 Id. at 179−80 (“It is a full-time job driven by love, but accomplished through reason and experience, because ‘[t]his is our work. Everything else vanishes.’”). 66 Eva Grunfeld et al., Family Caregiver Burden: Results of a Longitudinal Study of Breast Cancer Patients and Their Principal Caregivers, 170 Can. Med. Assoc. J. 1795, 1800 (2004). 67 See Una Stenberg et al., Review of the Literature on the Efects of Caring for a Patient with Cancer, 19 Psychooncology 1013 (2010)(reviewing 164 research- based articles fnding signifcant problems borne by family caregivers of cancer patients, including physical, social, and emotional problems and job and fnancial impacts). 68 See generally Conyers, supra note 4; Kaye, supra note 4. 69 Dennis C. Daley, Family and Social Aspects of Substance Use Disorders, 21 J. Food & Drug Analysis S73 (2013) (discussing emotional burden, economic burden, relationship distress, and other adverse impacts of SUD on family members); see also id. (collecting sources). Daley’s encapsulation of the range of efects of SUD on family members warrants repeating in full: “Emotional burden. Members may feel anger, frustration, anxiety, fear, worry, depression, 220 Lawrence transportation, advocacy, oversight, treatment, research, scheduling, and counseling. Yet the costs associated with these eforts are too often overlooked. Indeed, even while the President’s Opioid Commission counted impacts on family members among the “inestimable” costs of the opioid epidemic, it acknowledged only their “sufering . . . as witnesses to addiction,” not the time, efort, money, or lead role in care that family members often take on.70 Family can in some ways be participants, not just witnesses, in their loved ones’ battle with addiction. It should not be surprising, then, that public programs may fail to recognize the burden of care work to support those with SUD. Medicaid state waiver guidance published by the Centers for Medicare and Medicaid Services (“CMS”) on January 11, 2018 is a recent example. Medicaid is a federal program by which states provide health insurance, subsidized by the federal government, to low income persons pursuant to federal standards. Under section 1115 of the Medicaid statute, states may seek a “waiver” permitting them to alter eligibility, reimbursement, and other statutorily mandated criteria for their state Medicaid programs. Several states have publicly expressed interest since the beginning of the Trump Administration in using the 1115 waiver process to create some form of a “work requirement,” also called “community engagement,” that would make a person’s eligibility for
shame and guilt, or embarrassment. Economic burden. This may be caused by money spent on substances, or money problems associated with the loss of jobs or reliance on public assistance. Relationship distress or dissatisfaction. Families may experience high rates of tension and confict related to the SUD and problems it causes in the family instability. This may result from abuse or violence, or family breakup due to separation, divorce, or removal of children from the home by Children and Youth Services. Efects on the developing fetus and children. Alcohol use during pregnancy can harm fetal development causing birth defects and problems in child development. Infants born to opioid-dependent mothers are at increased risk for neonatal abstinence syndrome, which can contribute to developmental or cognitive delays. Children of parents with SUDs are at increased risk for abuse or neglect, physical problems, poor behavioral or impulse control, poor emotional regulation, conduct or oppositional disorders, poorer academic performance, psychiatric problems such as depression or anxiety, and substance abuse. Efects on parents. Mothers with SUDs may show less sensitivity and emotional availability to infants. Parents of a child with a SUD may feel guilty, helpless, frustrated, angry, or depressed.” Id. 70 The President’s Comm’n on Combating Drug Addiction and the Opioid Crisis, Opinion Letter on Recommendations to Combat the Addiction Crisis (Nov. 1, 2017), at 31. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 221
Medicaid contingent on her maintenance of gainful employment or other community engagement.71 In its January 11, 2018 guidance, CMS described how it recommends a state craft a waiver with some form of employment requirement in order to maximize the likelihood of CMS approval.72 The document recognized that many who receive Medicaid are “engaged as caregivers for young children or elderly family members” and encourages states to recognize such care work. And the document explicitly addresses treatment of those “with opioid addiction and other substance use disorder,” again encouraging states to accommodate such individuals. But its list of potentially accommodating measures is focused exclusively on the Medicaid eligibility of the SUD patients themselves. Absent from the CMS guidance’s policy recommendations on care work and SUD is recognition of the time and efort many family members put into caring for loved ones with SUD. This invites state requirements that fail to recognize the value of such work and, counter-productively, force low-income family members to choose between either devoting daily attention and time to their loved ones’ illness or continuing to receive Medicaid.73 In other words, it invites state requirements that have a blind spot for care work.
71 Abbe R. Gluck & Nicole Huberfeld, What is Federalism in Healthcare for?, 70 Stan. L. Rev. 1689, 1743 (2018) (“Like Indiana’s, Pennsylvania’s, and those of other states before it, Kentucky’s waiver proposal included work requirements for the population Governor Bevin called the ‘able-bodied,’ which the Obama Administration consistently refused to allow.”). 72 Letter from Brian Neale, Dir., Ctrs. For Medicare & Medicaid Servs., to state Medicaid Dir. (Jan. 11, 2018) (available at Medicaid.gov). 73 Under the granted Kentucky waiver, caregiving for a person with a “disabling medical condition” counts toward the community engagement requirement. Ctrs. for Medicare & Medicaid Servs., Kentucky Helping to Engage and Achieve Long Term Health (KY Health) Approval Package, 32 (2018). It is not apparent whether and under what circumstances Kentucky will include substance use disorder in this provision. The ADA excludes those who are “currently engaging” in illegal drug use from its defnition of qualifed individuals. That said, those in recovery may be considered disabled depending whether the addiction is considered a substantially limiting impairment. U.S. Equal Emp. Opportunity Comm’n, EEOCM1A, A Technical Assistance Manual on the Employment Provisions (Title 1) of the Americans with Disabilities Act §§ 8.2, 8.5 (1992); see Hartman v. City of Petaluma, 841 F. Supp. 949, 949 (N.D. Cal. 1994); see also U.S. Comm’n on Civil Rights, Sharing the Dream: Is the ADA Accommodating All?, Chapter 4 (Oct. 2000), https://www. usccr.gov/pubs/ada/ch4.htm. 222 Lawrence
3. Inequality Perhaps the main focus of the care work literature “has been to highlight the undervaluation and gendered nature of care work.”74 Heavy reliance on care work—on family members’ uncompensated eforts—often poses profound inequality concerns because of gender imbalances in who performs this work. In short, “[c]aring labor most frequently falls to women.”75 Research exploring the role of family in fghting SUD should be attentive to identifying and perhaps exploring the possibility that gender imbalances are endemic in this area as they are in care work on child care.76 Furthermore, the nature of care work on SUD creates the potential for a diferent form of inequality, in who benefts from such work rather than who performs it. Many of the tasks that family may assist with require cultural competence, time, and organization. Finding treatment providers that take insurance is an onerous task that—insofar as it entails navigating complex systems and bureaucracies and interacting with numerous strangers on the phone and in person—depends on cultural capital that may be less available based on race, class, or country of origin.77 In the somewhat related context of families’ abilities to advocate on behalf of children with autism in seeking special education resources, Baldwin-Clark found precisely this sort of structural inequality.78
74 Hofman, supra note 6, at 172. 75 Silverman, supra note 4, at 6. 76 While not the purpose, design, or subject of the study, the fact that 78% of family members not themselves reporting substance use who obtained precautionary Naloxone access and training in Massachusetts were female in Bagley’s study is consistent with the possibility of gender disparities in the burden of care work on SUD. Bagley et al., supra note 32, at 151. In the future researchers should consider designing such studies to develop insight into the distribution of care work burdens. 77 See, e.g., Emily Corwin, Shortage Of Addiction Counselors Further Strained By Opioid Epidemic, NPR: Shots (Feb. 24, 2016), https://www.npr.org/sections/ health-shots/2016/02/24/467143265/shortage-of-addiction-counselors- further-strained-by-opioid-epidemic; Binghui Huang, Medication could be key to addiction recovery, but in the Lehigh Valley few doctors prescribe such treatment, The Morning Call (May 4, 2018), http://www.mcall.com/business/health care/mc-nws-nhclv-mat-program-20180129-story.html; Beth Leipholtz, Shortage of Treatment Providers For Opioid Addiction Remains Issue For Many States, The Fix (Feb. 28, 2018), https://www.thefx.com/shortage-treatment- providers-opioid-addiction-remains-issue-many-states. 78 See generally Latoya Baldwin-Clark, Beyond Bias: Cultural Capital in Anti- Discrimination Law, 53 Harv. Civ. Rts-Civ. Liberties L. Rev. 281 (2018) VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 223
Access to health insurance coverage for SUD treatment and services is a potential example of inequality of the benefts of care work. Historically, mental health and addiction treatments and services have been subject to coverage exclusions and especially vigorous utilization review. The federal parity law seeks to counteract this tendency, forbidding insurers from treating mental health and addiction diferently from other illnesses in coverage policies and decision-making.79 But enforcement of this law is uneven, and many advocates believe that access to addiction treatment is often barred by inappropriate coverage limitations.80 Under the Afordable Care Act (“ACA”), all claimants who seek and are denied coverage for a treatment or service by their insurer have the right to appeal that decision both to the insurer and to an independent, external reviewer.81 Available statistics show that such appeals are successful as much as 40% of the time,82 so appealing coverage denials is a promising way to overcome this potential barrier to treatment. All patients are not equally positioned to appeal, however. Rather, a person’s functional ability to appeal an adverse coverage decision depends on her awareness of the appeals process, her cultural competence, her trust in institutions like the appeals process, her free time (or ability to hire help) to devote to the appeal, and so on.83 As scholars of civil procedure have long recognized, these variables can be correlated with income, education, age, race, and class, among other variables.84 Thus, our “system” for ensuring the
(discussing sources on and describing racial and class-based disparities in access to special education services, linking these disparities to underlying disparities in cultural competence and capital in addition to bias). 79 29 U.S.C. § 1185a (2018). 80 See Valerie A. Canady, Ten States to Embark on New Campaign to Ensure Parity Lives Up to its Promise, 27 Mental Health Weekly, Nov. 20, 2017, at 5; Alex Gertner, Blue Cross Should Cover More Opioid Treatment, The News & Observer (June 8, 2018), https://www.newsobserver.com/opinion/article212771774. html (“I called several . . . programs and was told that BCBS rarely pays for this type of treatment.”). 81 See Katherine Vukadin, Hope or Hype?: Why the Afordable Care Act’s New External Review Rules for Denied ERISA Healthcare Claims Need More Reform, 60 Buff. L. Rev. 1201 (2012) (describing ACA rules). 82 U.S. Gov’t Accountability Office, GAO-11-268, Private Health Insurance: Data on Application and Coverage Denials 22, 23 (2011) (fnding that appeals were successful in reversing coverage denial 39 to 59% of the time). 83 Baldwin-Clark, supra note 78, at n.27. 84 Marc Galanter is generally cited as the origin of this insight about the nature 224 Lawrence accuracy of insurance coverage determinations may entail diferential treatment, providing more “accurate” (however defned) favorable coverage determinations to those whose family connections have the capacity and wherewithal to appeal.
IV. Addressing Social Consequences Whatever their theoretical relevance, actually measuring social consequences like interference, invisibility, and inequality and weighing them against more easily ascertained impacts—in particular medical impacts—is hard to do, as discussed in Part A. This “knowledge problem” is a reason to invest in evaluation and research that is open to social consequences when implementing new laws that deputize family, as Part B illustrates with the case of involuntary treatment laws. Moreover, the “break-even” analysis approach used to incorporate hard-to-quantify variables in administrative law cost-beneft analysis provides a framework for assessing laws that deputize family, as discussed in Part C. And that framework can and should be employed to evaluate the wisdom of a legal change from a welfare economic perspective, as Part D’s discussion of the choice architecture of consent to disclosure of protected information related to SUD treatment demonstrates.
A. Health, Love, and Knowledge Incorporating the problems of interference, invisibility, and inequality in crafting laws that regulate health (or other behaviors) is challenging, in two ways. First is the problem of measurement, that is, of predicting how likely a legal change is to infuence a behavior that it might theoretically infuence. Measurement is a particular problem for assessing interference with family relationships.85 It is difcult enough to predict and measure the medical impact of a law that operates through third parties such as family members, even though health is a concrete and relatively measurable outcome.86 Assessing the
of procedural rules. See generally Marc Galanter, Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change, 9 L. & Soc’y Rev. 95 (1974). 85 As for invisibility and inequality, observing unseen labor and identifying disparities in the provision or availability of such unobserved labor pose challenges of their own, though when it comes to measurement these challenges are not as imposing as those for measuring interference. The more policymakers bring care work into the visible realm, the more it will be possible to assess inequality in its burdens and benefts. 86 See U.S. Dep’t of Health and Human Servs., supra note 20, at 12 VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 225 impact of such a law on the formation of caring relationships is much harder. While a promising history of scholarship seeks to track family relationships,87 such relationships are not as readily measured as health status indicators or health outcomes. Moreover, measuring the causal efect of law on such relationships is complicated by the fact that such efects are unlikely to be instantaneous, necessitating long-term observation.88 While it is possible and desirable that researchers might combine scholarship tracking family relationships with scholarship tracking the efect of law on behavior,89 such work is not readily available.90 In short, interference impacts are difcult to measure and predict. A related problem for incorporating social consequences is
(explaining that “federally funded research into substance abuse treatment has focused on . . . individual-specifc treatments” in part because “research with families is difcult and costly”); Simons et al., supra note 28, at 2 (“Methodological limitations and challenges associated with implementing family interventions in treatment settings may contribute to the mixed fndings about the efectiveness of family components for adult substance abusers.”). 87 E.g. Susan M. McHale et al., Sibling Relationships and Infuences in Childhood and Adolescence, 74 J. Marriage & Fam. 913 (2012); Clare M. Stocker et al., Sibling Relationships in Early Adulthood, 11 J. Fam. Psychol. 210 (1997). 88 The positive impacts of an intervention in this space may fow directly from the intervention itself and so be direct and immediate; for example, any beneft associated with involuntary treatment for the patient is immediately observable in the patient themselves and comes straight from the intervention. But upstream (or downstream, depending on one’s point of view) behavioral impacts of such interventions may be largely a function of the incorporation of knowledge of the rule into public awareness. In order for a bystander’s decision whether to call for help when a friend overdoses to be infuenced by “immunity” laws, she must know about those laws, so too, in order for a patient to avoid family for fear of involuntary treatment she must know about involuntary treatment laws. Such long-run behavioral impacts will presumably take time and widespread adoption and implementation (or education) to develop, so it will be very difcult to pick up in a typical study population. 89 See D. James Greiner & Andrea Matthews, Randomized Control Trials in the United States Legal Profession, 12 Ann. Rev. L. & Soc. Sci. 295 (2016) (discussing the usefulness of incorporating randomized control trials into the legal profession). 90 Researchers might use the fact that a person must know about a law for it to afect her behavior to measure interference with family relationships. Specifcally, researchers might consider randomizing disclosures to patients about particular laws in their state—such as involuntary treatment laws, civil forfeiture laws, or immunity laws—in order to assess any diferential downstream behavioral implications for family relationships, consistent of course with governing ethical requirements and IRB approval. 226 Lawrence that of quantifcation, that is, of converting a particular concern into terms by which it might be weighed against traditionally fnancial or medical impacts. This quantifcation challenge is a particular problem for inequality, which is recognized as difcult- if not impossible-to- quantify.91 Some have argued that it would be better to have an equal system than an unequal one so, 92 for example, we should not have an appeals process for insurance coverage decisions at all unless we can design one that is equally accessible in practice to all and so does not exacerbate inequality. Tradeofs that permit unequal treatment of anyone, or of any vulnerable group, may simply be intolerable and not susceptible to quantifcation and comparison with more fungible values. On the other hand, Kaplow and Shavell have argued that rather than incorporate some distributional considerations in regulatory design, regulators should design the optimal regulatory apparatus, then somehow repay or ofset any inequities through taxes or subsidies for those subject to them. It is possible to envision this approach being used to better account for inequality in consequential analysis of deputization; the value of unpaid labor (and hypothetical cost of repaying those who perform it) might be used to quantify unequal distribution of burdens, and the value of assistance (and hypothetical cost to provide it through state-sponsored navigators or other supports) might be used to quantify unequal distribution of benefts.93 In any event, the fact of measurement and quantifcation challenges in assessing social consequences like interference, invisibility, and inequality does not mean that such consequences do not exist or that scholars or policymakers should not consider them in weighing laws or reforms.94 To the contrary, this quantifcation challenge creates a risk that such impacts will be ignored, and so a danger that policymakers will adopt policies that appear to be benefcial or at least neutral in the short-term data capable of and
91 See Cass R. Sunstein, Valuing Life (2014) (discussing the difculty of quantifying human dignity). 92 See generally Louis Kaplow & Steven Shavell, Fairness Versus Welfare (2006) (discussing such arguments). 93 See id. (making such an argument). 94 Jonathan S. Masur & Eric A. Posner, Unquantifed Benefts and the Problem of Regulation Under Uncertainty, 102 Cornell L. Rev. 87, 122 (2016) (“The problem with this argument [that difcult-to-quantify values should be ignored] is that the zero probability is even more arbitrary than the regulator’s prior.”). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 227 subject to measurement, like impact on a particular patient’s health, even while being problematic or counter-productive overall or in the long run.95
B. The Need for Research into the Social Consequences of Deputization: The Case of Involuntary Treatment Laws Consideration of the risk of interference, invisibility, and inequality in deputization—the “social consequences” of deputization—can, even in the face of the knowledge problem discussed above, reveal the need for and guide further research before concluding that a policy is benefcial. Indeed, fear that eforts to regulate family will ultimately backfre is one of the reasons for the “[t]radition of [n]oninterference” in family law.96 In other words, the possibility of social consequences can at a minimum provide a reason for restraint before concluding that any particular reform that deputizes family is desirable, or for including in such laws provisions to ensure the development of better information regarding their full range of impacts and revisitation as necessary. Involuntary treatment laws ofer an example of such a reform as to which there is enough reason for concern about social consequences to justify continuing research. A growing body of state legislative reforms empower family members to petition to have their loved ones sent for involuntary treatment. Such laws generally empower family or doctors to ask a court to force a person into treatment for SUD on the ground that the disorder creates a “likelihood of serious harm.”97 Pennsylvania’s proposed statute is illustrative: it would empower a “spouse, guardian, or relative” to bring a petition.98 The claim that such laws actually carry a beneft in terms of health is dubious. For example, Beletsky and Ryan survey concerns with these laws, noting that voluntary treatment is more efective than involuntary treatment, particularly for those with mental illness or other health needs and that involuntary treatment passes costs from insurers to the state.99 Along the same lines, Bhalla and
95 See Sunstein, supra note 91; Masur & Posner, supra note 94. 96 See Carl E. Schneider, Moral Discourse and the Transformation of American Family Law, 83 Mich. L. Rev. 1803, 1837 (1985) (“The law not only suspects that intervention will do harm; it doubts that intervention will do good . . . .”). 97 Beletsky & Ryan, supra note 47 (citing Mass. Gen. Laws c. 123, § 35 (2018)); see also id. (describing 33 related state laws). 98 S. 391, 2017−18 Leg., Reg. Sess. (Pa. 2017); Bhalla et al., supra note 47, at 2. 99 See Beletsky & Ryan, supra note 47; see also Leo Beletsky et al., Expanding Coercive 228 Lawrence co-authors express doubts about the medical consequences of these laws and also express ethical objections.100 Such laws may also have social consequences that weigh against their adoption. In theory, empowering family members to force their loved ones into involuntary commitment could raise precisely the same concern that motivates the spousal privilege and the enhanced privacy protection provided to SUD treatment- related medical information, namely, concern about chilling communication.101 If awareness and utilization of such laws were widespread, they could theoretically discourage those with SUD from disclosing the extent of their addiction to loved ones, disclosing their location to loved ones, acknowledging a relapse to loved ones, and so on, for fear that such information would prompt and/or be used against them in an involuntary treatment proceeding.102 This potential concern is connected to the fact that in many states, involuntary treatment laws not only explicitly limit the class of petitioners to family, but also make information the family might have gleaned from their loved one the primary focus of the court’s decision whether to order the patient into treatment. For example, Pennsylvania’s proposed involuntary treatment law requires the petition assert:
The petitioner’s belief, including the factual basis for the belief, that the respondent is sufering from alcohol and other drug abuse and presents an imminent danger or imminent threat of danger to self, family or others, or that there exists a substantial likelihood of such a threat in the near future, if the respondent is
Treatment is the Wrong Solution for the Opioid Crisis, Health Aff.: Health Aff. Blog (Feb. 11, 2016), https://www.healthafairs.org/do/10.1377/ hblog20160211.053127/full/ (making similar fnding). 100 See Bhalla et al., supra note 47 (ofering survey of medical and ethical objections to civil commitment). 101 Confdentiality of Substance Use Disorder Patient Records, 82 Fed. Reg. 6052, 6053 (Jan. 18, 2017) (to be codifed at 42 C.F.R. pt. 2) (The spousal privilege is motivated by a desire to encourage communication between spouses, enhanced privacy for SUD medical information by a desire to encourage communication with providers.). 102 Cf. Why I Abandoned Tough Love Instead of My Child, Woman’s Day (July 1, 2016), https://www.womansday.com/health-ftness/wellness/a55379/help- for-parents-of-drug-addicts/ (discussing one mother’s perspective that her prior “tough love” approach had interfered with her son’s eforts at recovery). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 229
not treated for alcohol or other drug abuse.103
Accordingly, to someone who does not wish to pursue treatment, family in a state with an involuntary treatment law could theoretically present a double threat: the law directly empowers the family member to petition to force the patient into involuntary treatment, and the law makes whatever information the family member might have learned from his loved one central to the court’s willingness to initiate involuntary treatment proceedings. This poses the risk of twin chills: frst, against one’s willingness to even tell family that they may have SUD or, if they know, inform family of their location; and second, against one’s willingness to disclose details of their addiction to family for fear those details might be used against them. Involuntary treatment laws also may pose invisibility and inequality concerns. Family usually must pay for the treatment received, and going through the petition process poses signifcant logistical and emotional burdens for family, who are of course not paid for their eforts. As for inequality, as a means to identify and push into treatment those who need it such laws pose a real risk of disparities: as discussed above, civil procedure scholars have observed in other contexts that the meaningfulness of such an opt-in procedural mechanism can vary signifcantly across the population. To be sure, these are only potential, theoretical concerns about the possible social consequences of involuntary treatment laws. It may be that involuntary treatment laws have no impact on underlying family relationships currently and would still have no impact even if their existence became both widespread and widely known. On the other hand, it is accepted that fear of being subject to law enforcement discourages bystanders from calling for help when a friend overdoses; this is the behavioral rationale for immunity laws.104 It is an open question whether the same sort of fear would tend to discourage a person who is aware that a loved one might initiate involuntary treatment proceedings from informing that loved one of her illness, relapse, or location. This concern about potential interference does not shed any additional light on the acute health impacts of involuntary treatment
103 S. 391, 2017−18 Leg., Reg. Sess. (Pa. 2017)(emphasis added). 104 See Corey Davis et al., Changing Law from Barrier to Facilitator of Opioid Overdose Prevention, 41 J.L. Med. & Ethics 33, 34 (2013) (discussing need “to encourage bystanders to summon emergency responders” behind such laws). 230 Lawrence on the treated individual. However, it adds the following macro-level caution for further inquiry: such deputization mechanisms may alter the power dynamics within a family and so their widespread adoption and use may change family behaviors broadly. Moreover, any benefts and burdens they create are unpaid and may be distributed unfairly. It is important that legislators and policymakers investigate and assess such possible detrimental impacts on the family’s ability to improve health, reduce mortality, improve access, and aid in recovery in considering if any hypothetical benefts for access to treatment in an individual case are worthwhile. Moreover, where policymakers prefer to enact legislation despite uncertainty, they should include in such legislation provisions facilitating information gathering and policy re-assessment, such as providing funding for an agency report upon the health and social consequences of the law.105 This is not to say that gleaning quality information about social consequences by tracking a reform’s efects would be easy. Assessing the impact of a state policy change never is.106 But while perfect information may be unattainable, laws and studies can be designed to provide helpful information and, so, facilitate better policy.107
C. Accounting for the Social Consequences of Deputization with Break-Even Analysis No amount of feasible research will remove all uncertainty surrounding the social consequences of deputization. Extensive literature in administrative law on the theory and practice of cost- beneft analysis, however, discusses how policymakers can and should incorporate uncertain costs and benefts into their decision- making.108 This scholarship on the theory and practice of “cost- beneft analysis” discusses how administrative agencies should make evidence-informed decisions about hard-to-quantify or qualitative
105 C.f. Patient Protection and Afordable Care Act, Pub. L. No. 111-148, § 1946, 124 Stat. 119, 582 (2010) (mandating Secretary of HHS to evaluate data collection regarding health disparities and submit report to Congress recommending ways to improve such data collection). 106 See Kristin Madison, Building a Better Laboratory: The Federal Role in Promoting Health System Experimentation, 41 Pepp. L. Rev. 765, 777−83 (2014) (discussing impediments to such knowledge gathering). 107 For general discussion of the construction of reforms to encourage knowledge development, see id. at 784 n.84. 108 E.g., Sunstein, supra note 91; Masur & Posner, supra note 94; Amy Sinden, Formality and Informality in Cost-Beneft Analysis, 2015 Utah L. Rev. 93 (2015). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 231 considerations. The insights of this line of scholarship can be applied to incorporate the social consequences of deputization as well. Specifcally, “break-even analysis” is a normative framework for decision-making in the face of hard-to-quantify costs or benefts.109 This is an approach cost-beneft scholars and policymakers employ when, as occurs “[m]uch of the time, we cannot quantify the benefts of potential courses of action, or the costs, or both, and we must nonetheless decide whether and how to proceed.”110 In essence, breakeven analysis “quantifes what can be quantifed, acknowledges what cannot, and adopts a specifc framework to help regulators decide how to proceed in the way of limited information.”111 In practice, it entails establishing reasonable upper and/or lower “bounds” as thresholds that benefts would have to reach to be justifed (or that costs would have to reach to counsel caution), then utilizes all available evidence to estimate whether the benefts (or costs) are sufcient to meet that threshold.112 In short, break-even analysis simply dictates that “when an agency faces uncertainty, it should ask itself, ‘how small could the value of the non-quantifed benefts be (or how large would the value of the non-quantifed costs need to be) before the rule would yield zero net benefts.’”113 None of this is to say that policymaking should not be evidence based; it’s quite the opposite. Break-even analysis provides a framework through which policymaking can be more informed by evidence and also helps in determining where and how evidence should be developed.
D. Application: The Choice Architecture of Disclosure to and by Family This subpart demonstrates how the above framework can be used to evaluate and demonstrate the desirability of laws that deputize family in health care, weighing and comparing health
109 See Cass R. Sunstein, The Limits of Quantifcation, 102 Cal. L. Rev. 1369 (2014). 110 Id. at 1369. 111 Id. at 1372. 112 Id. at 1385−87 (illustrating the factors of break-even analysis and unquantifable factors in analysis). See also Pranav Kumar Choudhary et al., Break-Even Analysis in Healthcare Setup, 1 Int’l J. of Res. Found. Hosp. & Healthcare Admin. 29, 30–32 (2013) (describing break-even analysis in the healthcare world). 113 Masur & Posner, supra note 94, at 124 (quoting Office of Mgmt. & Budget, Circular A-4, Regulatory Analysis 2 (2003)). 232 Lawrence impacts with social impacts including interference, invisibility, and inequality. It does so by evaluating two potential changes to the choice architecture of privacy deputization for disclosure of SUD information: an active choice approach (as compared to an opt-in or opt-out approach) and supported decision-making. Private information pertaining to SUD treatment is protected from disclosure by both HIPAA and 42 C.F.R. Part 2, itself a creature of 42 U.S.C. § 1395dd. This protection restricts applicable providers’ ability to share medical information with those other than the patient. The Department of Health and Human Services (“HHS”) and the President’s Commission have each recognized that misunderstandings about HIPAA can lead to “obstacles to family support that [are] crucial to the proper care and treatment” of SUD suferers.114 While restricting disclosure of SUD treatment information carries a downside when it prevents a doctor from informing a family member that the patient would like informed, it carries a signifcant beneft when the promise of privacy encourages a person to come forward and seek treatment for SUD despite the heavy stigma surrounding the illness. The judgment—not questioned here— that the benefts of privacy under current requirements outweigh the associated costs is refected in the statutory and regulatory protection currently aforded under HIPAA and Part 2. This subpart focuses on a discrete but nonetheless important aspect of the experience of privacy for SUD patients distinct from the privacy requirements themselves: the choice architecture of deputization. As discussed in subsection 1, below, both HIPAA and Part 2 permit patients to authorize disclosures to family members, that is, to deputize family as eligible recipients of protected medical information. Yet the “choice architecture” of such deputization— how and when patients may enlist (or recognize) the help of family in navigating their treatment by authorizing disclosure to them— varies signifcantly between HIPAA and Part 2.
114 HHS Ofces for Civil Rights Issues Guidance on How HIPAA Allows Information Sharing to Address the Opioid Crisis, U.S. Dep’t of Health & Hum. Servs. (Oct. 27, 2017), https://www.hhs.gov/about/news/2017/10/27/hhs-ofce- civil-rights-issues-guidance-how-hipaa-allows-info-sharing-address-opioid- crisis.html. Commission Report, supra note 36, at 122 (noting 42 C.F.R. Part 2 as a barrier and modifcation to that regulation “to permit the sharing of this type of information among health care providers and the loved ones of those sufering from SUDs”). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 233
1. Choice Architecture of Deputization for SUD Disclosures HIPAA applies broadly to medical providers to limit the disclosure of protected health information.115 HIPAA’s privacy protections are a creature of privacy regulations promulgated by HHS under a broad delegation of statutory authority, and so all aspects of these protections can be changed through the administrative process.116 Because of concern that SUD suferers avoid treatment for fear of their illness being exposed to employers, family, or others, Part 2 ofers additional protections for the disclosure of protected health information collected by certain SUD treatment providers.117 Part 2 is largely a creature of regulation that can be changed through the administrative process, but the underlying statutory delegation is not as broad and so constrains both the breadth of the agency’s discretion to alter the rules through the administrative process and the scope of the agency’s permissible authority.118 Current HIPAA and Part 2 rules permit patients to deputize family, empowering them to receive protected information or even consent to additional disclosures.119 The manner and context of such deputization difers markedly between the programs, however. When it comes to family involved in a patient’s treatment, HIPAA generally leaves it to providers to decide case-by-case whether
115 45 C.F.R. § 164.104(a)(1)−(3) (2018); 45 C.F.R. § 164.500 (2018); 45 C.F.R. § 164.502 (2018). 116 Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104−191, 110 Stat. 1936; 42 U.S.C. § 1320d-2(a) (2018). 117 Confdentiality of Substance Use Disorder Patient Records, 82 Fed. Reg. 6052, 6053 (Jan. 18, 2017) (to be codifed at 42 C.F.R. pt. 2) (“The laws and regulations governing the confdentiality of substance use disorder records were written out of great concern about the potential use of substance use disorder information against individuals, causing individuals with substance use disorders not to seek needed treatment. The disclosure of records of individuals with substance use disorder has the potential to lead to a host of negative consequences, including: Loss of employment, loss of housing, loss of child custody, discrimination by medical professionals and insurers, arrest, prosecution, and incarceration.”). 118 42 U.S.C. § 290dd-2 (1992) (amended 1998). 119 See 45 C.F.R. § 164.502(g) (2018); 45 C.F.R. 164.510(b) (2018); 42 C.F.R. 2.31 (2018); Ofce for Civil Rights Headquarters, Guidance: Personal Representatives, Health Information Privacy (Sept. 19, 2003), https://www. hhs.gov/hipaa/for-professionals/privacy/guidance/personal-representatives/ index.html; Elizabeth Snell, Do HIPAA Regulations Need Updates on Patient Privacy?, Health IT Security (Aug. 15, 2017), https://healthitsecurity. com/news/do-hipaa-regulations-need-updates-on-patient-privacy. 234 Lawrence the patient’s consent to disclosure should be opt-in or opt-out and how opt-in or opt-out should occur.120 In other words, providers choose whether and how to seek patients’ input about consenting to disclosure to family—at the start of treatment, the end, verbally, in writing, explicitly, implicitly, etc. HHS did not discuss the decision to leave this choice architecture to the discretion of providers at length in the privacy rule but did explain that this approach permits providers to use their medical judgment about the best course.121 Part 2, on the other hand, makes deputization opt-in. A patient must afrmatively agree to disclosure in writing, and this agreement must satisfy certain regulatory criteria for duration, specifcity, and so on.122 Consistent with the underlying concern about encouraging patients with SUD to seek treatment without fear of discovery or embarrassment given societal stigma, this makes the default presumption one of non-disclosure to friends and family, i.e., of isolation. Turning to the scope of deputization, HIPAA allows patients to empower their family or friends to permit further disclosures under very limited circumstances.123 Specifcally, if a patient has granted authority to “mak[e] decisions related to health care” to another, then that deputy is also authorized under HIPAA to permit disclosures of protected information, for example, to an additional provider.124 The regulations do not permit patients to empower a loved one to authorize such disclosures without taking the further step of also empowering the loved one to make medical decisions. The scope of deputization under Part 2 is even more limited. A patient can only empower another to help coordinate her care by authorizing disclosure or re-disclosure by making that person her legal guardian. Moreover, the regulations include a requirement, not included in the statute, prohibiting re-disclosure of protected information by its recipient.125
120 45 C.F.R. § 164.510 (a)(2) (2018) (provider can either seek patient’s afrmative consent or disclose when patient does not take advantage of an “opportunity to object” provided that such disclosure is within the patient’s best interest and consistent with any prior expressed preference he or she may have). 121 Standards for Privacy of Individually Identifable Health Information, 65 Fed. Reg. 82462, 82664 (Dec. 28, 2000). 122 42 C.F.R. § 2.31(a) (2018). 123 45 C.F.R. § 164.502(g)(2) (2018). 124 Id. 125 Compare 42 C.F.R. § 2.32 (2018) (prohibition on re-disclosure), with 42 U.S.C. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 235
2. The Preferability of Break-Even Analysis over HHS’s Regulatory Approach HHS substantially revised Part 2 in 2017.126 The agency focused exclusively on operational costs of changes to the rule in its Regulatory Impact Analysis, as if Part 2 did not have important impacts on the health of SUD suferers as well.127 This is in contrast to the efort of other agencies to pull apart and carefully consider even uncertain benefts and costs in rulemaking.128 This is characteristic of HHS, however; a recent study of the use of cost-beneft analysis in rulemaking showed HHS as the agency that most frequently failed to engage in cost-beneft analysis ostensibly called for by Executive Order.129 It would have been preferable for HHS to engage in some form of cost-beneft analysis, perhaps including break-even analysis, that grappled with the various costs and benefts of Part 2 as they related to the revised rule, for four reasons. First, Part 2 implicates a host of important considerations and analysis of these considerations would reduce the likelihood that current rules might fail to accurately balance them. Foremost, of course, is the beneft that protecting the privacy of SUD treatment information may encourage individuals to seek treatment who would otherwise fear adverse consequences from unwanted disclosure to employers, law enforcement, loved ones, and so on. HHS mentioned this motivating beneft of Part 2 in the preamble to its rule.130
§ 290dd-2(a) (1992) (amended 1998) (limiting disclosures by treatment providers). 126 Confdentiality of Substance Use Disorder Patient Records, 82 Fed. Reg. 6052 (Jan. 18, 2017) (to be codifed at 42 C.F.R. pt. 2). 127 Id. at 6109 (“When estimating the total costs associated with changes to the 42 C.F.R. part 2 regulations, we assumed fve sets of costs: updates to health IT systems costs, costs for staf training and updates to training curriculum, costs to update patient consent forms, costs associated with providing patients a list of entities to which their information has been disclosed pursuant to a general designation on the consent form . . . and implementation costs associated with the List of Disclosures requirements.”). 128 See generally Sunstein, supra note 91 (discussing such eforts); Masur & Posner, supra note 94, at 124 (same). 129 Masur & Posner, supra note 94, at 124 (describing the HHS as “dominat[ing]” list of agencies that produced regulations for which “either benefts or costs (or both) were not quantifed at all). 130 Confdentiality of Substance Use Disorder Patient Records, 82 Fed. Reg. 236 Lawrence
While encouraging patients to seek treatment is paramount, a countervailing concern is that Part 2 imposes a cost by making coordination among providers more difcult.131 Again HHS mentioned this countervailing cost of Part 2 in the preamble to its rule in describing the underlying protection, but did not either quantify or purport to weigh it in relation to its proposed revision, despite emphasizing the importance of balancing it with the access-promoting purposes of Part 2.132 Moreover, various commentators have identifed, implicitly or explicitly, additional considerations: Part 2 helps lower the likelihood of employment, law enforcement, custody, or other discrimination on the basis of SUD. Such discrimination can be intrinsically bad above and beyond its relationship to chilling treatment and associated health impacts.133 And Part 2 makes it harder for law enforcement to identify and prosecute those with SUD to the extent their SUD brings illegal activity; some believe that such law enforcement activity can itself be harmful rather than helpful for a variety of reasons and on that view any policy change that makes it easier as a cost rather than a beneft.134 Second, a more fulsome analysis explaining whether and why
6052, 6053 (Jan. 18, 2017) (to be codifed at 42 C.F.R. pt. 2) (“The laws and regulations . . . were written out of great concern about . . . causing individuals with substance use disorders not to seek needed treatment.”). 131 See Jennifer K. Manuel et al., Confdentiality Protections Versus Collaborative Care in the Treatment of Substance Use Disorders, 8 Addiction Sci. Clinical Prac. 13 (2013). 132 Confdentiality of Substance Use Disorder Patient Records, 82 Fed. Reg. 6052, 6077 (Jan. 18, 2017) (to be codifed at 42 C.F.R. pt. 2) (“With respect to obstacles to information sharing, one of SAMHSA’s goals for this rulemaking is to ensure that patients with substance use disorders have the ability to participate in and beneft from new integrated health care models without fear of putting themselves at risk of adverse consequences.”); id. at 6089 (“SAMHSA acknowledges the legitimate concerns of commenters regarding how care coordination relates to patient safety. However, SAMHSA must consider the intent of the governing statute [], which is to protect the confdentiality of substance use disorder patient records.”). 133 See, e.g., Karla Lopez & Deborah Reid, Discrimination Against Patients with Substance Use Disorders Remains Prevalent and Harmful: The Case for 42 C.F.R. Part 2, Health Aff.: Health Aff. Blog (Apr. 13, 2017) (“The confdentiality law is often the only shield between an individual in recovery from addiction and the many forms of discrimination and prejudice that could destroy their lives.”). 134 See id. (describing “arresting, prosecuting, and incarcerating people because of their illness” as a cause of stigma surrounding SUD). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 237 the agency’s experts saw chilling concerns as outweighing medical coordination benefts from loosening Part 2 would go further toward persuading proponents of medical coordination that HHS had struck the right balance. Numerous provider groups support changes to Part 2, presenting the law as an “outdated” barrier to information sharing among providers.135 A fuller explanation of costs and benefts of these changes from HHS might persuade proponents they are not worthwhile, and would provide a greater foundation upon which any future Congressional consideration could be built to be sure that Congress does not miss tradeofs, predictions, or valuations that might have been implicit but unarticulated in HHS’s rulemaking. Third, even when costs and benefts are inevitably uncertain, teasing them out to the extent possible in a systemic way facilitates subsequent research and revisitation of crucial policy assumptions. As will be discussed at greater length below, a strength of break- even analysis is that it helps to pinpoint questions on which further research might be both possible and determinative, and so encourages regulators continually to reassess policies as new information comes to light.136 Fourth, a break-even analysis would increase the likelihood that the agency identifed and considered viable alternatives and tweaks to its chosen approach.137 The following sections will illustrate this with regard to the consent provisions of the rule. All that said, cost-beneft analysis of the Part 2 rule would not have been without downsides. Paramount, perhaps, is the risk of overestimating costs of Part 2 and underestimating benefts. The costs of Part 2—interfering with care coordination—are highly visible to health care providers. Its benefts, however—an increased likelihood that patients will seek treatment—are not as visible. Providers are plainly much less likely to encounter people who were deterred from seeking treatment by fear of disclosure; relatedly, the population of people that providers do meet are likely to be those for whom fear of disclosure did not wind up being determinative.
135 See generally Partnership to Amend 42 CFR Part 2, www. helpendopioidcrisis.org (last visited Nov. 11, 2018). 136 See Masur & Posner, supra note 94, at 126 (noting that “[t]his review of priors could take place as part of the broader retrospective review of regulations”). 137 For example, “[s]everal commenters expressed concerns that the prohibition on re-disclosure did not improve patient privacy protections,” Confdentiality of Substance Use Disorder Patient Records, 82 Fed. Reg. 6052, 6090 (Jan. 18, 2017) (to be codifed at 42 C.F.R. pt. 2), but HHS did not respond to that comment or explain why it disagreed. 238 Lawrence
And providers themselves experience the inconvenience and harms of Part 2 to the extent that it limits coordination. As such, a large, well-informed and connected constituency for Part 2 may tend to underestimate the benefts of Part 2 and overestimate its costs.138 This presents the risk that this bias would infect break-even analysis as well. Concern that some benefts or costs may be overemphasized is a reason to be careful in engaging in break-even analysis, or even to endorse a presumption in such analysis in favor of the likely-under- exposed value. It is not, however, a reason to refuse to admit the possibility that the value might not be worthwhile in some cases or to explain analytically how and why benefts of a rule outweigh the costs. Indeed, that approach might be counterproductive because, as explained above, it could lead to the propagation through the administrative process of a suboptimally tailored rule that lacks the support of a large constituency.
3. Break-Even Analysis Indicates that Providers Should Be Encouraged to Ofer an Active Choice About Part 2 Consent Of course, performing the break-even analysis that was lacking from HHS’s revision of Part 2 is beyond the scope of this Article. This section’s focus is instead on the more narrow question of how family are deputized as able to receive and authorize disclosure of a person’s otherwise protected medical information. Break-even analysis of the frst question—how family are deputized as able to receive a loved one’s protected information under Part 2—reveals that providers should be encouraged to present patients with an “active choice” about such deputization. Rather than make non-disclosure the assumed, default option, providers should afrmatively ask patients in each case whether they would like to identify one or more loved ones as able to obtain their health information. As discussed above, HIPAA does not mandate a single default rule for permitting disclosure of protected medical information to patients’ friends or family. Instead, the current privacy rule leaves it to doctors to use their judgment to decide whether to employ an opt-in or opt-out approach or, indeed, to decide whether to present the choice at all. This makes HIPAA’s privacy rule an example of a
138 See Sunstein, supra note 91 (discussing such bias). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 239
“tailored default”139 in which the determination of the default is left to the provider. The choice architecture of Part 2 consent is in some sense a tailored default as well, except that doctors do not have the option of making consent “opt-out” when it comes to SUD information protected by Part 2 as they do when it comes to HIPAA. 140 Specifcally, Part 2 requires a detailed, written consent form.141 The default rule for consent is important because default rules can be a powerful infuence on decision-making; in organ donation, studies have shown the default determining a person’s choice approximately 16%–22% of the time.142 Defaults stick for several reasons: some individuals see defaults as communicating policymakers (or doctors’) judgment about the “best” option for them, and so take the default as a signal of the preferred approach.143 Others follow the default due to the decisional burden of departing from it—not making a choice is easier than making a choice, especially when making the choice requires involved steps.144 And fnally, due to the “endowment efect,” some value the default state of afairs more highly simply because it is the default.145 This “status quo bias” can be avoided using an “active choice” approach in which decision-makers are forced to decide one way or the other, without a default option. An active choice approach avoids signaling one option as the “best one” and neutralizes the endowment efect, potential benefts bought at the “price” of forcing
139 For an explanation of tailored defaults, see Ariel Porat & Lior Jacob Strahilevitz, Personalizing Default Rules and Disclosure with Big Data, 112 Mich. L. Rev. 1417, 1420−27 (2014) (discussing advantages of personalized default rules). 140 See Omri Ben-Shahar & John A. E. Pottow, On the Stickiness of Default Rules, 33 Fla. St. L. Rev. 651 (2006). 141 42 C.F.R. § 2.31(a) (2018). 142 See Kendrick T. Van Dalen & Kène Henkens, Comparing the Efects of Defaults in Organ Donation Systems, 106 Soc. Sci. & Med. 137, 139 (2014) (reporting opt-in rate of 50% to organ donation as compared to 66% participation rate under active choice regime in survey-based study); Richard H. Thaler, Opting In vs. Opting Out, N.Y. Times, Sept. 26, 2009, at BU6 (reporting 60% organ donation participation rate in Illinois under active choice regime, as compared to 38% rate nationally); Stan Dorn et al., Making Health Insurance Enrollment as Automatic as Possible (Part 1), Health Aff.: Health Aff. Blog (May 2, 2018), https://www.healthafairs.org/do/10.1377/hblog20180501.141197/ full/. 143 See Lawrence, supra note 9, at 115−16 (collecting sources addressing reasons defaults stick). 144 Id. 145 Id. 240 Lawrence the decisional burden of making a choice on everyone.146 In short, active choice deprives people of the freedom not to decide, but frees their decision of the encumbrances of a perhaps undesired signal about the “best” option and the endowment efect.147 Is it right to leave providers on their own in deciding whether to make consent to Part 2 disclosure “opt-in” or instead to present patients with an “active choice” about such disclosure? Health: From the perspective of patient health, it is not clear that one or the other (opt-in or active choice) is preferable. The health concern underlying privacy protection for such information is that the threat of unwanted disclosures would deter someone from seeking treatment.148 But it is not apparent that asking a person afrmatively to decide whether to permit disclosure to a loved one or not would increase or decrease this threat. Indeed, Part 2 regulations require an early notice be given to patients regarding protections; inquiring about consent at the same time might helpfully underscore that the patient’s information is private if she wants it to be. In other words, concern that the threat of disclosure will discourage patients from seeking medical care in the frst place is a reason not to disclose private information without the patient’s consent, not a reason to choose a default of non-disclosure over an active choice regime. In either case medical information is disclosed only with the patient’s consent. Interference: In contrast to health impacts, active choice has several potential social benefts over an opt-in regime. First, to the extent that people follow the status quo because they perceive it as a signal of the preferred alternative by policymakers,149 an opt-in regime signals that policymakers see going it alone as the best course. But research indicates that, quite the contrary, involving family in care
146 See generally Cass R. Sunstein, Deciding by Default, 162 U. Pa. L. Rev. 1, 39−43 (2013) (discussing arguments in favor of active choosing). 147 See Cass R. Sunstein, Foreword to Nudging Health, at xi (Glenn Cohen et al. eds., 2016). 148 See Paul N. Samuels & Patty McCarthy Metcalf, Relaxing Patient Privacy Rules Would Worsen the Opioid Epidemic, Stat (Nov. 24, 2017), https://www. statnews.com/2017/11/24/opioid-epidemic-patient-privacy/ (arguing based on logic that Part 2 privacy protections signifcantly increase patients’ willingness to seek treatment such that relaxing such protections would cause “immeasurable and immediate” harm). 149 See John Beshears et al., The Importance of Default Options for Retirement Saving Outcomes: Evidence from the United States, in Social Security Policy in a Changing Environment 167 (Jefery R. Brown et al. eds., 2009). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 241 is a positive.150 Accordingly, an opt-in approach may send the wrong signal and an active choice regime would be a preferable alternative because it would avoid sending any signal at all. Invisibility: Second, as to invisibility, an opt-in regime creates a signifcant risk that due to lack of awareness or inertia, a person whose loved ones are actively involved in her care will simply not go through the trouble of signing (or be unaware they can sign) a consent to permit her provider to disclose information to the loved one. Indeed, HHS encourages this common work-around.151 In such a case, the patient may simply communicate protected information to the loved one herself. While this is a lawful workaround and may be a functional one as well, it increases the likelihood that the role of family in assisting with a person’s treatment will go unobserved by policymakers or providers. Moreover, this invisible workaround for informing loved ones involved in a SUD patient’s care creates the risk of an additional adverse health impact of an opt-in regime. Even closely involved family may then be cut of from pivotal information if for any reason, such as a relapse, their loved one becomes unavailable to share information themselves. In such a case, the loved one who has been serving as a navigator and the provider themselves would be unable to collaborate, simply because they did not take the preemptive step of getting a consent on fle when they had the chance due to an opt- in regime. Inequality: Finally, inequality favors active choice because the efect of a default is not the same for all infuenced by it.152 A well- informed patient or family member with experience or competence navigating complicated health care regimes is relatively better able and more likely to learn of and fnd ways to overcome a default rule.
150 See supra Part II.A. 151 Confdentiality of Substance Use Disorder Patient Records, 82 Fed. Reg. 6052, 6070 (Jan. 18, 2017) (to be codifed at 42 C.F.R. pt. 2) (“[I]t is permissible [under part 2] for a patient to disclose information to a personal health record or similar consumer application but if a part 2 program or lawful holder of patient identifying information discloses that information to the personal health record or similar consumer application on behalf of the patient, consent would be required.”). 152 See Jessica L. Roberts, Nudge-Proof: Distributive Justice and the Ethics of Nudging, 116 Mich. L. Rev. 1045, 1055 (2018) (“[N]udges do not work equally well for all citizens . . . .”); Lawrence, supra note 9, at 115−17 (discussing “status quo bias as a sifting mechanism” based on predictable variation among the population in the stickiness of defaults). 242 Lawrence
In concrete terms, this means that a person’s ability to authorize a family member to discuss treatment options with his doctor depends on her cultural capital, educational, and competing decision burdens. So, the goal of equal treatment favors fewer burdens and active choice. Weighing: As compared to an opt-in regime, active choice about disclosure of protected SUD treatment information to loved ones involved in a person’s care carries a reduced risk of interference with family relationships, makes care work more visible, reduces inequality inherent in an opt-in system, and has potential health benefts. It therefore appears to be the preferable way to present patients with the question of whether to consent to disclosure of their protected SUD information to loved ones. Moreover, leaving providers with the unguided decision of whether and when to present an active choice about consent risks that they will not do so often enough. By training and by perspective, providers are positioned to focus on medical efects. This creates a risk that providers will tend to give too little weight to systemic, social consequences that are both beyond their expertise and beyond their immediate view. Accordingly, regulators should at a minimum consider issuing guidance encouraging providers to present patients with an active choice about disclosure to loved ones as a matter of course unless they perceive some concern that counsels against doing so. Such guidance might also suggest logistics for when and how to ask patients to make this choice. Moreover, it might be that any health benefts of allowing providers to decline to present patients with a choice about deputization are outweighed by the costs of this “tailored default” approach. This question should be explored further and, with it, the possibility of mandating rather than merely encouraging providers to present an active choice about consenting to disclosure of SUD information to loved ones in all cases.153
153 Recently enacted federal legislation explicitly empowers family caregivers and requires that they be given support and resources. But this legislation was motivated by proponents of long-term care for the elderly, and so is triggered only upon a patient’s discharge from inpatient treatment at the hospital. H.B. 1329, 199th Gen. Assemb., 2015−16 Reg. Sess. (Pa. 2016) (Caregiver Advise, Record, and Enable Act allows for a patient to choose their caregiver following discharge from a hospital, upon signed consent; hospitals are obligated to provide all instructions to care to the caregiver in question); Recognize, Assist, Include, Support and Engage Family Caregivers Act of VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 243
4. Break-Even Analysis Indicates that Permitting Supported Decision-Making for Part 2 Consent is a Difcult Judgment Call In addition to pointing to reforms that are desirable (or undesirable), inclusion of social consequences in break-even analysis can promote understanding of laws that deputize family even where it does not ultimately counsel in favor a potential reform. The extent to which patients may deputize family to authorize disclosure of their Part 2-protected information is an example. A patient’s ability to permit a loved one to do more than receive protected information is very limited under both HIPAA and Part 2. If a patient wants to permit a loved one to authorize disclosures to third parties, she must give that loved one the power to make health care decisions for her through at least a power of attorney or, in the case of Part 2, formal guardianship. 154 No in-between option is available whereby a loved one can be acknowledged and empowered as a care partner, both receiving information and authorizing further disclosures to additional providers or care workers. Supported decision-making is an alternative approach that has been gaining ground in other contexts. It is a rights-based alternative
2017, Pub. L. No. 115−119, 132 Stat. 23 (2018) (establishing benefts for home health caretakers who assist their family members outside of a hospital setting, including a new position that coordinates with several agencies to devise a specifc plan to ensure the education and development of positive outlooks for family caregivers); Mindy Fetterman, Family Caregivers Finally Get a Break — and Some Coaching, NPR: Shots (Apr. 27, 2018, 5:00 AM), https://www.npr.org/sections/health-shots/2018/04/27/606054065/family- caregivers-fnally-get-a-break-and-some-coaching. The same considerations that justify mandating attention to family caregivers in that context—at the time of discharge, case-specifc medical considerations may become relatively less weighty and systemic questions about how entities beyond the provider will care for the patient going forward become more weighty—may justify requiring providers to inquire whether SUD patients would like to authorize disclosures to their own care-givers, if any, and the provision of institutional and educational resources to such caregivers, at the time of discharge from inpatient or outpatient SUD treatment. 154 See Ofce for Civil Rights Headquarters, supra note 119 (“State or other law should be consulted to determine the authority of the personal representative to receive or access the individual’s protected health information.”); cf. Daniel L. Walbright, Recent OCR Action Provides HIPAA Guidance Related to Opioid Crisis and Privacy Rule in Research, Nat’l L. Rev. (Jan. 3, 2018), https://www. natlawreview.com/article/recent-ocr-action-provides-hipaa-guidance-related- to-opioid-crisis-and-privacy-rule (describing recent HHS OCR release of tools designed to assist patients and family members in situations of opioid abuse and overdose and mental health crises). 244 Lawrence to guardianship in the disability and elder law felds.155 Supported decision-making provides “legal recognition to relationships of trust” by empowering a person’s “advocate” to discuss her health care and other options with providers and otherwise participate in the care decision-making process.156 The key insight of supported decision-making is to create an interim legal recognition, short of power of attorney or other forms of actual decision-making control, for advocates who participate in a person’s health care.157 A number of states have passed legislation explicitly empowering patients to acknowledge supported decisionmakers, ensuring that such supporters be given enhanced participation in their loved ones’ medical decision-making.158 Such an in-between approach, in which patients could empower their loved ones to participate in their care, including receiving, sharing, and authorizing the disclosure of protected health information, without giving their loved ones the power to make health care decisions for them, holds promise for SUD. That said, break-even analysis indicates that such a reform may not be desirable and points to open questions that must be explored (or about which informed judgments must be made) to decide that question. Health: From the perspective of patient health, supported decision-making in SUD carries potential benefts and costs. One beneft would be that such an approach would mitigate the difculties currently posed by care coordination in SUD; loved ones empowered to authorize disclosures could help a diverse network of providers, social workers, and others involved collaborate on a patient’s care. On the other hand, empowering a third party to authorize disclosures on a patient’s behalf creates an inevitable risk that such disclosure will be undesired by the patient, and so of chilling the patient from sharing information in the frst place. As avoiding such a chill is a purpose of Part 2, such a potential cost should be given
155 See generally Rebekah Diller, Legal Capacity for All: Including Older Persons in the Shift from Adult Guardianship to Supported Decision-making, 43 Fordham Urb. L.J. 495 (2016). 156 Id. at 512, 516. 157 See id. at 514 (describing an interim legal recognition that uses the “best interpretation of will and preferences” when making substituted decisions on behalf of a person whose will and preferences cannot otherwise be ascertained). 158 E.g., Del. Code Ann. tit. 16 §9401A (2018) (“This chapter may be cited as the ‘Supported Decision-Making Act.’”). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 245 substantial weight. Interference: The current all-or-nothing approach to empowering third parties under Part 2 has clear downsides from the perspective of interference. Some patients may feel compelled to grant a loved one who is closely involved in their care power of attorney to facilitate that involvement. On the other hand, other patients may be forced to navigate aspects of treatment themselves despite their desire to involve family because they are unwilling to go so far as to give their loved one power of attorney (or enter guardianship). In such a case, the current approach isolates patients even when they have access to family supports who they would like to make more involved. Equality: Finally, it is possible that the current approach has equality benefts in this limited sense: by efectively forbidding some forms of care work, the current approach ensures that the burdens of such work are equally distributed. Implementing some form of supported decision-making for personal information protected by Part 2 would carry potential benefts: it could facilitate collaboration between providers and others involved in a person’s treatment while both recognizing and encouraging the close participation of loved ones in the treatment of patients who want such support. On the other hand, such a reform poses some risk of unwanted disclosures, and the burdens of supported decision-making might not be unfairly distributed. Having identifed these tradeofs, the next step in break-even analysis is to construct upper or lower bounds for both (or either) the uncertain costs and benefts of supported decision-making for SUD. Efect on fatal overdose rates is a logical starting point for setting these bounds. SUD suferers enrolled in evidence-based treatment have an all-cause mortality rate that is about 1/3 of those who are not.159 So, it is fair to say that for each person who is chilled from treatment, there will be 24.8 additional deaths per 1000 life years.160 On the other hand, meta-analysis of studies exploring the relationship between social relationships and health generally reveals a non- disease-specifc 50% increased risk of survival associated with such
159 See Sordo et al., supra note 16, at 4 (noting a mortality rate of 11.3 per 1000 person years for SUD suferers in methadone treatment and 36.1 per 1000 person years for SUD suferers not in methadone treatment). 160 This number subtracts the inefective-treatment mortality rate from the out- of-treatment rate from the prior footnote; 36.1-11.3=24.8, see Sordo et al., supra note 16, at 4. 246 Lawrence relationships, and studies on the SUD impacts of such relationships are consistent with this fnding.161 Based on this, we can estimate a reasonable upper bound for the impact of family involvement in SUD may be ~5.65 fewer deaths per 1000 life years.162 If we attribute supported decision-making as capturing 10% of this by facilitating more family involvement and coordination among providers, then supported decision-making would mean .0565 (or .057) fewer fatal overdoses per extra supported decision-making arrangement. Setting bounds in this way reveals the following tradeof: in order to be worthwhile from the perspective of health, approximately 44 individuals would have to make use of supported decision-making for every 1 individual who was deterred from seeking treatment due to supported decision-making.163 This tradeof makes it difcult to say whether such a reform would be worthwhile or not from the perspective of health; if the ratio were 1000:1 it might be easy to say that supported decision-making is unlikely to be worth it, and if the ratio were 1:1 it would be easy to say that it is. Thus, breakeven analysis reveals that to be justifed based on medical beneft alone a reform applicable to patients who are in treatment must be strong indeed if it comes with any increased risk of chilling patients from seeking treatment in the frst place, because the risk of chill applies to all patients and the cost of such chill is very high. Furthermore, this analysis reveals where additional information or tough judgments are needed to decide about the desirability of supported decision-making in SUD care. In the fnal analysis, the desirability of supported decision-making in the SUD context depends crucially on whether and to what degree such a reform could lead to more patients being chilled from seeking treatment for fear of unauthorized disclosures. This depends, in turn, crucially on the mechanism by which some SUD suferers’ fear of disclosure should they seek treatment comes to be. If this fear is in some sense rational—based on the actual likelihood of disclosure—then supported decision-making poses little risk of chill. A SUD patient concerned about unauthorized disclosure by her supported decisionmaker would have an option to avoid
161 See Holt-Lunstad et al., supra note 5 (reporting 50% increased likelihood of survival for those with stronger social relationships); supra note 50 (discussing SUD-specifc evidence). 162 This number multiplies the in-treatment mortality rate by .5; 11.3 * .5 = 5.65. 163 This number refects the ratio of the bound for the potential health harm (24.8) to the bound for the potential health beneft (.57); 24.8/.57 = 43.5. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 247 such disclosure short of avoiding treatment altogether: she could simply decline to empower such a decisionmaker (or revoke the deputization). On the other hand, if the fear that chills patients from seeking treatment—and that Part 2 is designed to mitigate—is based purely on anecdotal stories of unwanted disclosures, then the possibility of such disclosures resulting from a supported decision- making regime alone would give cause for concern. Further research might helpfully explore this mechanism, and in the interim this is a key question on which policymakers considering such a reform must make a judgment.
5. Patient Deputies The two preceding suggestions—active choice about patient consent to disclosure of SUD information coupled with a new option for patients to empower someone short of a guardian to obtain and authorize disclosure of their medical information—could be coupled at the state or federal level with a systematic “patient deputy” program. A state or federal database (perhaps building on prescription drug monitoring program infrastructure) could permit patients to appoint a “patient deputy” who would presumptively be empowered to obtain and share their health care information. Such an approach would carry the potential benefts and potential costs of the two separate choice architecture changes discussed above. Publicity and centralization associated with such a program would carry several additional positive implications. From the standpoint of health, regulators could use registration as a health care deputy as an opportunity to provide educational materials tailored to help loved ones do their care work more efectively. At the same time, such a program would be a conduit through which to take steps to protect the health of such care takers, who too often sufer their own health or fnancial issues from their focus on their loved ones’ needs.164 From the standpoint of interference, state recognition of the paramount but in some sense emergent, non-traditional role that loved ones other than spouses play in many patients’ lives would both encourage and provide recognition and validation to such relationships.165 The state could use its expressive power to endorse
164 See Grunfeld et al., supra note 66. 165 Compare U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 538 (1973) (endorsing inclusive understanding of family in case involving participation of “‘hippies’ and ‘hippie communes’” in food stamp program), with Melissa Murray, The 248 Lawrence the role that so many already take on, thereby potentially facilitating the formation of additional such relationships. From the standpoint of invisibility, a centralized patient deputy program would permit state regulators to begin to develop a better-informed understanding of the extent of care work performed by loved ones. Moreover, with this understanding in hand, regulators could begin to address such work and relationships in social programs that currently ignore them. For example, the Family and Medical Leave Act currently excludes siblings from its protections; a person is not entitled to protected time of to care for a sibling. A patient deputy program would provide a ready basis on which to expand these protections to all care takers, recognizing the evolving nature of caring relationships today.166 Lastly, from the standpoint of inequality, a patient deputies program would permit regulators to better track the benefts and burdens of care work. Given a current scarcity of resources, it may be too much to imagine that patient deputies would be properly compensated for their labors, but observing labors that are currently going un-recognized would be a frst step. Moreover, as to burdens, if such tracking revealed that that those able to make use of the patient deputies program refected an uneven sample of the overall patient population, then regulators should explore directing available resources—such as funding for navigator programs—to counteract the imbalance in hopes of a more just health care system.
V. Conclusion: Deputizing Family in SUD and Beyond While the health impacts of any legal intervention may be paramount, when assessing the desirability of an intervention that makes foreseeable use of loved ones such as family it is important to consider the possibility that the health reform has adverse social
Networked Family: Reframing the Legal Understanding of Caregiving and Caregivers, 94 Va. L. Rev. 386, 398−99 (“The law efectively has constructed a parent/stranger dichotomy in which one is either a parent . . . or one is a legal stranger . . . .”). 166 Cf. Murray, supra note 165, at 388 (“By characterizing caregiving as the exclusive province of parents, the law overlooks the considerable eforts of caregivers who are not parents”); see id. (“[I]n order to better support caregiving as it is practiced, I call for a broader legal understanding of caregiving that would acknowledge a wider range of caregiving eforts . . . .”); Barbara Bennett Woodhouse, “It All Depends on What You Mean by Home”: Toward a Communitarian Theory of the “Nontraditional” Family, 1996 Utah L. Rev. 569, 576–84. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 249 consequences. Even the mere possibility of such consequences may turn the balance against adoption of a reform with questionable health impacts. Consideration of the social consequences of deputization in the prevention and teatment of SUD—in particular, of interference, invisibility, and inequality posed by laws that deputize family in this context—counsels in favor of greater choice regarding such deputization. The desirability of some changes, such as supported decision-making or a patient deputy program, may be a matter of judgment, but providers, insurers, and regulators should at least favor an “active choice” approach when it comes to patients’ decisions to deputize their own family members in their care. In health care and especially in the treatment of SUD, isolation should not be the default. There are also lessons that extend beyond SUD and beyond healthcare. The “deputization” framework this Article has employed ofers a way of thinking about the burdens of care work generally that makes such work more visible and more readily understood. Scholars in family law have lamented that the public/private narrative generally applied to care work—in which such work takes place in the “private” sphere, as distinct from the “public” world of regulation and government—facilitates the invisibility of care work.167 Understanding all laws that foreseeably rely on care work in addressing a regulatory problem as “deputizing family”—and so understanding loved ones as analogous to social workers, doctors, bureaucrats, or other regulatory tools rather than as sui generis, independent, and invisible providers of care—breaks down this public/private distinction. This narrative shift may not be without cost—“deputization” entails someone doing the deputizing, implying that the work is on some level done for another. When deputization comes from the state, “collapsing” the public and private actually means the public absorbing the private. That understanding could interfere with family relationships in unexpected and presumably (though perhaps not necessarily) undesirable ways. On the other hand, when deputization comes through the patient—when a law permits a patient to empower a loved one vis a vis disease or third parties—this risk
167 Murray, supra note 165, at 436 (“Emphasizing the private character of caregiving, they argued, absolved the state of any responsibility to assist families in providing care, and, critically, contributed to the devaluation of caregiving and caregivers.”). 250 Lawrence is not present. Relatedly, the examples and analyses in this Article have revealed a similar tendency that separates laws that empower a loved one vis a vis the patient and laws that permit the patient to empower a loved one vis a vis third parties. Patient-disempowering deputizations have tended to pose a risk of negative interference with family relationships, while patient-empowering deputizations have tended to raise the possibility of positive interference. That dynamic is not unique to healthcare, so further research might explore whether the character of deputization is as determinative of its desirability in other contexts. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 251
Health, Housing, and the Law
Abraham Gutman,*1 Katie Moran-McCabe,** Scott Burris***
* Senior Data and Policy Analyst at the Center for Public Health Law Research at the Temple University Beasley School of Law; BA, Hunter College; MA, Hunter College. ** Special Projects Manager at the Center for Public Health Law Research at the Temple University Beasley School of Law; BS, University of Delaware; JD, Temple University. *** Professor of Law, Temple University Beasley School of Law; Director, Center for Public Health Law Research at Temple University Beasley School of Law; BA, Washington University; JD, Yale Law School. 252 Gutman, Moran-McCabe, & Burris
Table of Contents I. Introduction ...... 253 II. A Goal of Health Equity in Housing ...... 255 A. Safe Housing Without any Hazards ...... 257 B. Housing Afordability and Instability ...... 259 C. Healthy Neighborhoods ...... 263 III. Legal Levers for Health Equity in Housing ...... 266 IV. The Many Things We Do Not Know About the Impact of Basic Housing Laws ...... 277 A. Domain 1: Increasing the Supply of New Afordable Housing ...... 278 1. The Low-Income Housing Tax Credit Program (LIHTC) ...... 278 2. Land Use Regulation ...... 281 3. Vacant Properties, Land Banks, and Land Trusts ...... 282 4. Building Codes ...... 284 B. Domain 2: Maintaining Existing Housing Afordable, Stable, and Safe ...... 286 1. Housing Code Enforcement and Landlord-Tenant Law ...... 286 2. Nuisance Property Ordinances ...... 288 3. Preventing Eviction—“Just-Cause” and Free Legal Representation ...... 290 4. Rent control ...... 291 C. Domain 3: Afrmatively Furthering Fair Housing ...... 292 1. Fair Housing Protections and the AFFH Rule ...... 292 2. Inclusionary Zoning ...... 295 3. Fair Share and Other State-Level Mandates...... 297 D. Domain 4: Enhancing Economic Choice for the Poor .....298 1. Housing Choice Voucher Program ...... 298 2. The Mortgage Interest Deduction ...... 303 3. The Earned Income (Housing) Tax Credit ...... 304 4. The Minimum Wage ...... 305 5. Protecting Lower-Income People from Predatory Lending ...... 307 E. Domain 5: Governance and Planning ...... 309 V. Conclusion...... 311 VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 253
I. Introduction A decent dwelling is necessary for health and well-being— but not actually sufcient. The community in which the dwelling stands matters, too: access to transportation, good schools, shops, parks, socioeconomic mixture, social capital and collective efcacy, and economic opportunity are all features necessary for both a high- level and equitable distribution of well-being. These goods are basic human needs that any society should ensure to its members for both moral and practical reasons. This article assumes that increasing the proportion of Americans who live in healthy homes in socially and racially heterogeneous communities with the features we describe would be good for individual and collective well-being alike. Both healthy homes and diverse communities are consistent with the stated values and preferences of most Americans,1 and the law has done much to promote them. For 50 years, the Fair Housing Act has stood as a ban on discrimination and a mandate to afrmatively foster integration. Since the 1970s, most states have read into residential leases an implied warranty of habitability to promise that every rental unit has the basic requirements for safe living, and these have been supported by housing codes and specifc rules on lead and other domestic hazards. Since the 1980s, the Low- Income Housing Tax Credit program (LIHTC) funded millions of new units of long-term afordable housing. Federal housing subsidy programs have put billions of dollars every year into low income rental assistance. Dedicated lawyers, community organizations, and bureaucrats work with these tools every day, and every day they win battles. It is not their fault we have lost the war.2
1 See J. Rosie Tighe, Public Opinion and Afordable Housing: A Review of the Literature, 25 J. Plan. Literature 3, 7 (2010). 2 The failure of the U.S. to deliver on the promise of equitable housing has not come cheap. In fscal year 2017 HUD spent more than $28 billion on public and Indian housing (including the Housing Choice Voucher Program), almost $7 billion on community development programs including the Homeless Assistance Grants and Housing Opportunities for Persons with AIDS, and $11 billion in housing programs including project-based vouchers. See U.S. Dep’t of Hous. & Urban Dev., Fiscal year 2017 Congressional Justifications (2017), https://www.hud.gov/sites/ documents/FY_2017_CJS_COMBINED.PDF. In addition, the U.S. treasury spends $8 billion annually on the Low Income Housing Tax Credit program and $77 billion on the mortgage interest deduction. Joint Comm. on Taxation, JCX-34-18, Estimates of Federal Tax Expenditures for Fiscal Years 2017-2021 (May 25, 2018), https://www.jct.gov/publications. html?func=startdown&id=5095. 254 Gutman, Moran-McCabe, & Burris
The promise of fair housing law has more often been honored in the breach than the observance, and the United States remains segregated by race and class. Poor tenants remain largely powerless in conficts with their landlords, facing tragic choices between housing and exposure to toxins, such as lead and mold. For the poorest, eviction is a common, devastating experience. The country has a shortage of afordable units. Vouchers remain a perpetual pilot, available to only a small proportion of those who need them. Sadly, law was much more successful in promoting segregation in the frst 70 years of the 20th century than it has been in remedying the problems in the last 50 years. There are many explanations for the collective failure to achieve a higher standard of healthy, integrated housing. One is that law has never stopped promoting and preserving segregation. Afrmative tools of zoning (which can impede the difusion of afordable housing in suburbs, towns, and urban neighborhoods), or the incentives written into LIHTC (which can nudge developers to build new units in or on the edges of poor neighborhoods), as well as broader policy actions and inactions around gentrifcation and urban development have all played a role. Supplying enough afordable housing to all citizens is a huge challenge. Going beyond simply building healthy afordable units and reaching toward fostering and maintaining diverse, equitable neighborhoods runs counter to decades of deliberate segregationist policy, enduring stigmas of race and class, widespread enmity toward immigration, NIMBYism, and the rising inequality in the U.S. It counts as a “wicked problem”—a complex problem with so many elements that there is even a dispute about its defnition, and that has no clear set of solutions.3 The best strategies for addressing “wicked problems” are adaptive, collaborative, and informed by a systems perspective.4 In this article, we take three preliminary steps that strike us as necessary for using law more efectively in the adaptive, system-oriented process of promoting healthier, more equitable communities. In Part II, we propose (and defend) a broad goal of health equity in housing. In Part III, we ofer a heuristic model of the system of legal levers that are arguably instrumental to that goal. We hope that such a model can be a useful tool for breaking the
3 Horst W. J. Rittel & Melvin M. Webber, Dilemmas in a General Theory of Planning, 4 Pol’y Sci. 155, 161 (1973). 4 Nancy Roberts, Wicked Problems and Network Approaches to Resolution, 1 Int’l Pub. Mgmt. Rev. 1, 2–15 (2000). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 255 wicked problem into a set of tamer ones. Finally, in Part IV of this article, we grapple with what we actually know about these legal levers. Despite the importance of housing, the efects and operation of many of the primary legal levers have not been studied. While research cannot produce defnitive answers to wicked problems, it can serve to help defne problem elements, narrow the range of solutions, and improve implementation. We conclude in Part V with some early thoughts about next steps for a renewal of systematic eforts toward housing equity.
II. A Goal of Health Equity in Housing
“The connection between health and the dwellings of the population is one of the most important that exists” – Florence Nightingale5
We have asserted that increasing the proportion of Americans living in racially and socioeconomically mixed communities—a condition we will call “health equity in housing”—will make us a happier, healthier nation. This part reviews scientifc evidence that supports our claim. We do not assert that heterogeneous communities are the only kind of healthy communities; we know, on the contrary, that cohesive, ethnically concentrated neighborhoods can be very healthy indeed.6 Nor do we believe that some sort of statistically complete integration is either possible or necessary to yield substantial social benefts. Rather, as the evidence we present below will suggest, we believe that pursuing more diversity in residential conditions in America is a powerful way to deal with a variety of ills. A broad vision plays a crucial role in an adaptive systems change, by providing an attractive endpoint around which an account of the system and its dynamics can cohere. For lawyers and others working for a healthier America, it provides both accountability and a point of reference linking tactics with strategies: it is a way to ensure that we do not only win battles but also the war itself. A broad vision is important politically for many of the same reasons: it helps reclaim the credibility of the idea of working for major social change, and that idea has to be fairly clear and broadly attractive.
5 Florence Nightingale, cited in S. Lowry, Housing, 303 British Med. J. 838 (1991). 6 Brenda Egolf et al., The Roseto Efect: A 50–Year Comparison of Mortality Rates, 82 Am. J. Pub. Health 1089 (1992). 256 Gutman, Moran-McCabe, & Burris
In the remainder of Part II, we make the case for why this goal is desirable, from a health and health equity standpoint.7 Housing is crucial to health. A house provides shelter, protection against the elements, and a locus for maintaining personal identity and family life. Financially, it is often a family’s biggest investment (or monthly expense). Moreover, as sociologist Douglas Massey and his colleagues describe,
In selecting a place to live, a family does much more than simply choose a dwelling to inhabit; it also selects a neighborhood to occupy. In doing so, it chooses the crime rate to which it will be exposed; the police and fre protection it will receive; the taxes it will pay; the insurance costs it will incur; the quality of education its children will receive; the peer groups they will experience; the goods, services, and jobs to which the family will have access; and the relative likelihood a household will be able to build wealth through home appreciation; not to mention the status and prestige, or lack thereof, family members will derive from
7 In 2013, the Robert Wood Johnson Foundation announced an endeavor to promote a “Culture of Health . . . that enables all members of our diverse society to lead healthy lives, now and for generations to come.” Laurie T. Martin et al., How Cultural Alignment and the Use of Incentives Can Promote a Culture of Health (2017) (quoting Alonzo L. Plough, Building a Culture of Health, 47 Am. J. of Preventive Med. S388 (2014)). As we understand it, the idea of a “culture of health” is a way to recast the epidemiological concept of the social determinants of health—a set of conditions and causal processes in the world—as a matter of beliefs, knowledge and actions in communities. Speaking in terms of a culture of health highlights our interdependence and suggests that we as a society can choose to attach greater value to promoting health in “[t]he contexts in which people live, learn, work, and play.” See Paula A. Braveman et al., Broadening the Focus: The Need to Address the Social Determinants of Health, 40 Am. J. Preventive Med. S4 (2011); see also Why Are Some People Healthy And Others Not? (Robert G. Evans et al. eds., Aldine de Gruyter 1994); Commission on Social Determinants of Health, Closing the Gap in a Generation: Health Equity Through Action on the Social Determinants of Health, World Health Organization [WHO] (2008). See generally Bruce G. Link & Jo Phelan, Social Conditions as Fundamental Causes of Disease, Extra Issue, J. Health & Soc. Behav. 80, 81 (1995) (providing evidence, frameworks and action recommendations for addressing social determinants of health). Our work on housing, supported by the Foundation, aspires to identify ways in which Americans can improve health through action on housing. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 257
living in the neighborhood.8
The epidemiology connecting housing and health can be divided into four elements: (1) the relationship between housing hazards and health; (2) the relationship between housing afordability and health; (3) the relationship between housing stability and health; and (4) neighborhood efects on health. These elements are captured in Figure 1.
Figure 1: A simple model of the synergistic effect of all housing aspects on health
A. Safe Housing Without any Hazards Home is the epitome of a safe place—or at least it ought to be. Diseases associated with hazards such as lead and mold persist at high numbers and rates. According to the most recent American Housing Survey, 1,505,000 households in the U.S. were living in units that were severely inadequate and 5,184,000 were in moderately inadequate units.9 These statistics refect that up to six
8 Douglas S. Massey et al., Climbing Mount Laurel: The Struggle for Affordable Housing and Social Mobility in an American Suburb 1 (2013). 9 U.S. Census Bureau, American Housing Survey (2015). 258 Gutman, Moran-McCabe, & Burris percent of housing units are inadequate to some degree.10 The most notorious housing hazard is lead. “The most common source of childhood lead poisoning is lead-based paint (LBP) in older homes and buildings, and the primary exposure pathway is ingestion of lead-contaminated dust.”11 According to the Centers for Disease Control and Prevention (CDC), there is no safe amount of lead in a child’s blood.12 Although lead had been a high- profle policy concern for decades and its toll has declined,13 in 2016, the CDC still reported elevated blood-lead levels in approximately 500,000 children.14 Even low blood-lead levels are associated with intellectual impairment,15 academic performance defcits,16 attention defcits,17 and anti-social behavior.18 Lead is not the only housing hazard. Cockroaches, rats, and other vermin have been shown to contribute to the development of asthma, particularly in children.19 Indoor dampness and water leaks can produce mold that leads to asthma and other respiratory
10 Id. 11 Stephanie P. Brown, Federal Lead–Based Paint Enforcement Bench Book 11 (2009). 12 Ctrs. for Disease Control and Prevention, Childhood Blood Lead Levels in Children Aged <5 Years – United States, 2009–2014, 66 Surveillance Summaries 1, 6 (2017). 13 The difcult battle to protect Americans from lead is thoroughly explained in Gerald E. Markowitz et al., Lead Wars: The Politics of Science and the Fate of America’s Children 6 (2013). 14 Nat’l Ctr. for Envtl. Health/Agency for Toxic Substances & Disease Registry, Meeting of the Lead Poisoning Prevention Subcommittee of the NCEH/ATSDR Board of Scientific Counselors: Record of the Proceedings 9 (Sept. 9, 2016). 15 David C. Bellinger & Herbert L. Needleman, Intellectual Impairment in Blood Lead Levels, 349 New Eng. J. Med. 500 (2003). 16 David C. Bellinger et al., Low-Level Lead Exposure, Intelligence and Academic Achievement, 90 Pediatrics 855, 860 (1992). 17 Joel T. Nigg et al., Confrmation and Extension of Association of Blood Lead with Attention-Defcit/Hyperactivity Disorder (ADHD) and ADHD Symptom Domains at Population-Typical Exposure Levels, 51 J. Child Psychol. & Psychiatry 58, 58 (2010). 18 Kim N. Dietrich et al., Early Exposure to Lead and Juvenile Delinquency, 23 Neurotoxicology Teratology 511, 514 (2001). 19 Virginia A. Rauh et al., Deteriorated Housing Contributes to High Cockroach Allergen Levels in Inner-City Households, 110 Envtl. Health Persp. 323, 323 (2002); Augusto A. Litonjua et al., Exposure to Cockroach Allergen in the Home is Associated with Incident Doctor-Diagnosed Asthma and Recurrent Wheezing, 107 J. Allergy & Clinical Immunology 41, 41 (2001). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 259 problems.20 Radon, a radioactive gas prevalent in some homes, is the second leading cause of lung cancer in the U.S.21 Improper sanitation, extreme temperatures, pesticide residues, and risk of injury due to poor conditions (particularly for children and the elderly) are all hazards that one can be exposed to in the home. 22
B. Housing Afordability and Instability The six percent of households that live in structurally inadequate housing are paying a steep health price for shelter—but they are not getting of easy on the rent.23 The rising cost of housing is a problem for Americans, ranging from the poorest all the way to the middle class; millions of Americans face a monthly struggle to pay their rent or mortgage. Almost one in three households—mostly renters—in the U.S. is cost-burdened, defned as paying more than 30% of annual income for housing.24 About half of those are severely cost-burdened, paying more than half of annual income for shelter.25 The U.S. Department of Housing and Urban Development (HUD) estimated that in 2015, 8.3 million low-income households were cost-burdened, received no government assistance, and/or lived in severely inadequate conditions—a signifcant increase from 5.9 million households in 2005.26 While the housing market of a global city like San Francisco cannot be compared to a poor city like Milwaukee, cost-burdened households are scattered all across America.27
20 W. J. Fisk et al., Meta-Analyses of the Associations of Respiratory Health Efects with Dampness and Mold in Homes, 17 J. Indoor Air 284, 284 (2007). 21 R. William Field, A Review of Residential Radon Case-Control Epidemiologic Studies Performed in the United States, 16 Rev. Envtl. Health 151, 151 (2001). 22 Edmond D. Shenassa et al., Social Disparities in Housing and Related Pediatric Injury: A Multilevel Study, 94 Am. J. Pub. Health 633, 633–39 (2004); Stephen R. Lord et al., Home Environment Risk Factors for Falls in Older People and the Efcacy of Home Modifcations, 35 Age & Ageing ii55, ii55–59 (2006); Muhammad Sarwar, Indoor Risks of Pesticide Uses are Signifcantly Linked to Hazards of the Family Members, 3 Cogent Med., Dec. 22, 2016, at 1. For a review of housing standards see Thomas D. Matte & David E. Jacobs, Housing and Health—Current Issues and Implications for Research and Programs, 77 J. Urb. Health 7, 7 (2000). 23 Matthew Desmond, Evicted: Poverty and Profit in the American City 5 (2016). 24 See Joint Ctr. for Hous. Studies of Harvard Univ., The State of the Nation’s Housing 5 (2017). 25 Id. 26 Nicole Elsasser Watson et al., Worst Case Housing Needs 2017 Report to Congress 1–2 (2018). 27 According to the National Low-Income Housing Coalition, “in no state can a 260 Gutman, Moran-McCabe, & Burris
Struggling to pay for housing has signifcant consequences for health. An individual who is cost-burdened must constantly make tradeofs that are harmful for health. A report published by the Center for Housing Policy Leadership fnds that “[c]ompared with working families in more afordable housing, families that pay more than half of household expenditures for housing reduce expenditures for other essentials such as food, clothing, and healthcare.”28 For cost- burdened households, “the rent eats frst.”29 In addition, housing cost-burden is a source of stress,30 which has a powerful, lifelong impact on health.31 Furthermore, social epidemiology studies fnd
person working full time at the federal minimum wage aford a two-bedroom at the Fair Market Rent [as determined by HUD].” Some states/municipalities enacted “living wages” that are higher than the federal minimum wage, however these too are far from the hourly wage needed to pay fair market rents. In San Francisco, the most expensive metropolitan area in 2018, the efective minimum wage is the state’s wage of $11 an hour while the needed hourly-wage for a two bedroom is $38.13. In 2018, a person earning minimum wage in San Francisco would need to work 218 hours a week to pay only 30% of annual income. This is not only a coastal problem. The lowest hourly minimum wage that would allow someone working full time to not be cost burdened is $13.84, which would prevent a minimum wage earner from being cost burdened in Arkansas only. Additionally, in only 22 counties in the entire nation a full-time worker earning the federal or state minimum wage can pay less than 30% of annual income on rent. Nat’l Low Income Hous. Coal., Out of Reach 2017 (2017). Further analysis from the Coalition reveals that the wages are not the only problem: “The U.S. has a shortage of 7.4 million rental homes afordable and available to extremely low-income renters, whose income is at or below the poverty guideline or 30% of their area median income.” Nat’l Low Income Hous. Coal., The Gap: A Shortage of Affordable Housing 6 (2017). 28 Barbara J. Lipman, Something’s Gotta Give: Working Families and the Cost of Housing 7 (2005). 29 Desmond, supra note 23, at 303; See also Elizabeth J. Mueller & J. Rosie Tighe, Making the Case for Afordable Housing: Connecting Housing with Health and Education Outcomes, 21 J. Plan. Literature 371, 378 (2007). 30 Joseph Harkness & Sandra J. Newman, Housing afordability and children’s well- being: Evidence from the national survey of America’s families, 16 Housing Pol’y Debate 223, 225 (2005); M. Sandel & R.J. Wright, When Home is Where the Stress Is: Expanding the Dimensions of Housing That Infuence Asthma Morbidity, 33 Archives of Disease in Childhood 942–48 (2006). 31 See Robert N. Buschmann, et al., Stress and Health Behaviors as Potential Mediators of the Relationship Between Neighborhood Quality and Allostatic Load, 28 Annals of Epidemiology 346 (2018); Karen A. Matthews & Linda C. Gallo, Psychological Perspectives on Pathways Linking Socioeconomic Status and Physical Health, 62 Ann. Rev. Psychology 501 (2010); Pilyoung Kim et al., How Socioeconomic Disadvantages Get Under the Skin and into the Brain to Infuence Health Development Across the Lifespan, in Handbook of Life Course Health VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 261 that stress is unequally distributed, afecting populations of low- income and people of color at higher rates. The “stress gap” is thought to be an important cause of the health gap between advantaged and disadvantaged groups.32 One source of stress for people struggling to pay the rent or the mortgage is the brooding threat of losing their dwelling to eviction or foreclosure.33 Matthew Desmond’s Evicted: Poverty and Proft in the American City rendered visible to Americans the magnitude of eviction as a part of life for the poor—and the serious harm widespread eviction causes. Eviction leads to an increase in the likelihood of material hardship, depression in mothers, and worsened health outcomes for mothers and children.34 Additionally, eviction increases the likelihood that a low-income worker will be laid of.35 A systematic literature review confrms Desmond’s fndings that forced moves lead to poor physical and mental health.36 The negative health outcomes have a disparate impact on families with children, and hence women.37 Eviction seems to be hard on both children and adults. Research from Milwaukee shows that the majority of tenants facing eviction lived with children. More than half of those evicted children were school-aged,38 and each eviction leads to a higher risk of future forced moves.39 Research suggests that moves are associated with poorer academic performance,40 meaning that there is a high
Development 463 (Neal Halfon et al., eds., 2018); Vincent Felitti et al., Relationship of childhood abuse and household dysfunction to many of the leading causes of death in adults: The Adverse Childhood Experiences (ACE) Study, 14 Am. J. Preventive Med. 245–58 (1998). 32 See generally Jacob Bor et al., Population Health in an Era of Rising Income Inequality: USA, 1980-2015, 389 The Lancet 1475, 1485–86 (2017); Peggy A. Thoits, Stress and Health: Major Findings and Policy Implications, 51 J. Health & Soc. Behav. S41, S49 (2010). 33 Matthew Desmond & Rachel Tolbert Kimbro, Eviction’s Fallout: Housing, Hardship, and Health, 94 Soc. Forces 295, 299 (2015). 34 See generally Desmond, supra note 23. 35 Matthew Desmond & Carl Gershenson, Housing and Employment Insecurity among the Working Poor, 63 Soc. Probs. 47 (2016). 36 Hugo Vásquez-Vera et al., The threat of home eviction and its efects on health through the equity lens: A systematic review, 175 Soc. Sci. & Med. 199, 205 (2017). 37 Matthew Desmond et al., Evicting Children, 92 Soc. Forces 303, 314, 320 (2013). 38 Id. at 314. 39 Matthew Desmond et al., Forced Relocation and Residential Instability Among Urban Renters, 89 Soc. Serv. Rev. 227, 255 (2015). 40 Shana Pribesh & Douglas B. Downey, Why Are Residential and School Moves 262 Gutman, Moran-McCabe, & Burris likelihood that evicted children will have to switch schools, and are thus more likely to drop out.41 Often, eviction leads to moves to neighborhoods with higher crime rates,42 which are associated with lower quality schools and poorer academic performance.43 Poor health, material hardship, and parenting stress—all associated with eviction44—have also been associated with lower performance in school.45 Finally, eviction is associated with increased risk of homelessness,46 which produces lower test scores.47 The evidence based on foreclosure’s health toll is even larger. Mirroring eviction efects, foreclosure disproportionately afects already-vulnerable populations and leads to both higher incidence and exacerbation of poor health.48 There is ample evidence that foreclosure is correlated with a decline in mental health,49 including an increase in the likelihood of suicide.50
Associated with Poor School Performance?, 36 Demography 521, 521 (1999). 41 See Russell W. Rumberger & Katherine A. Larson, Student Mobility and the Increased Risk of High School Dropout, 107 Am. J. Educ. 1, 3, 19–22. (1998). 42 Desmond et al., supra note 39, at 230, 254. 43 Dana Charles Mccoy et al., Neighborhood Crime and School Climate as Predictors of Elementary School Academic Quality: A Cross-Lagged Panel Analysis, 52 Am. J. Community Psychol. 128, 128–40 (2013). 44 Desmond, supra note 23, at 1. 45 Edward A. Frongillo et al., Food Stamp Program Participation is Associated with Better Academic Learning Among School Children, 136 J. Nutrition 1077, 1077– 80 (2006); Steven R. Shaw et al., The Relationship Between Student Health and Academic Performance: Implications for School Psychologists, 36 Sch. Psychol. Int’l 115, 115–34 (2015); Kathryn Soltis et al., Associations Among Parental Stress, Child Competence, and School-Readiness: Findings from the PACE Study, 24 J. Child & Fam. Stud. 649, 649–55 (2015). 46 See generally Maureen Crane & Anthony M. Warnes, Evictions and Prolonged Homelessness, 15 Housing Stud. 757, 757–73 (2000); Matthew Desmond, Evicted: Poverty and profit in the American City (2016). 47 See, e.g., Joshua M. Cowen, Who Are the Homeless? Student Mobility and Achievement in Michigan 2010–2013, 46 Educ. Researcher 33, 33–43 (2017). 48 Craig Evan Pollack & Julia Lynch, Health Status of People Undergoing Foreclosure in the Philadelphia Region, 99 Am. J. Pub. Health, 1833, 1833, 1838 (2011); Alexander C. Tsai, Home Foreclosure, Health, and Mental Health: A Systematic Review of Individual, Aggregate, and Contextual Associations, 10 PloS ONE 1 (2015); Craig Evan Pollack et al., Foreclosure and Health Status; Leonard Davis Inst. Health Econ. Issue Brief, Jan.–Feb. 2010, at 2–3. 49 Jason N. Houle, Mental Health in the Foreclosure Crisis, 118 Soc. Sci. & Med. 1 (2014); Janelle Downing, The Health Efects of the Foreclosure Crisis and Unafordable Housing: A Systematic Review and Explanation of Evidence, 162 Soc. Sci. and Med. 88, 95 (2016). 50 Katherine A. Fowler et al., Increase in Suicides Associated with Home Eviction and VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 263
High rent burdens, eviction, and foreclosure are all facets of residential instability which, in addition to forced moves, has been associated with poor health outcomes and with loss of employment and possessions that could lead to material hardship. The trauma of forced moves is also associated with more punitive parenting.51 In addition, families often fnd it difcult to fnd housing after eviction or foreclosure, and are forced into homelessness,52 inadequate housing,53 and/or a move to a neighborhood with more crime and poverty.54
C. Healthy Neighborhoods There are many aspects of a neighborhood that contribute to health, but in this article, we focus on four related elements: poverty rate, racial segregation, public amenities, and social mobility. Concentrating poor people in poor neighborhoods does not have positive efects, so it is concerning that between 2010 and 2014, the number of Americans living in an extreme poverty census tract (poverty rate greater than 20%) doubled, reaching 13.5% of the population.55 The demographic of those concentrated in poverty is also unequal: only 5.5 percent of white people live in extreme poverty tracts, while 25.1% of black people and 17.6% of Hispanic people do.56 The Moving to Opportunity (MTO) demonstration, a large randomized controlled trial funded by HUD to test the impact of moving from a poor neighborhood, produced experimental evidence that growing up in a neighborhood with a low poverty rate
Foreclosure During the US Housing Crisis: Findings From 16 National Violent Death Reporting System States, 2005–2010, 105 Am. J. Pub. Health 311, 314–15 (2015); Jason N. Houle & Michael T. Light, The Home Foreclosure Crisis and Rising Suicide Rates, 2005 to 2010, 104 Am. J. Pub. Health 1073, 1073 (2014); see Tsai, supra note 48, at 6–12. 51 See Robert H. Bradley & Robert F. Corwyn, Socioeconomic Status and Child Development, 53 Ann. Rev. Psy. 371, 384 (2002). 52 See generally Crane & Warnes,, supra note 46; Robin Phinney et al., Housing Instability Among Current and Former Welfare Recipients, 97 Am. J. Pub. Health 832 (2007). 53 Matthew Desmond et al., Forced Relocation and Residential Instability Among Urban Renters, 89 Soc. Serv. Rev. 227, 256 (2015). 54 Id. at 234, 254. 55 Elizabeth Kneebone & Natalie Holmes, U.S. Concentrated Poverty in the Wake of the Great Recession, Brookings (Mar. 31, 2016), https://www.brookings.edu/ research/u-s-concentrated-poverty-in-the-wake-of-the-great-recession/. 56 Id. 264 Gutman, Moran-McCabe, & Burris improves well-being on multiple dimensions.57 Low neighborhood poverty rates led to less distressed parents and male children,58 healthier adults,59 reduction in the prevalence of obesity and diabetes,60 and higher incomes in adulthood for children who grew up in these neighborhoods.61 Moving toward opportunity is also moving toward better health. Living in a highly racially segregated neighborhood also has efects on health. Segregation is by no means a relic of the past and the cities with the largest black populations are still highly segregated.62 An economic analysis of the efects of segregation on schooling, employment, and single parenthood fnds that “blacks in more segregated areas have signifcantly worse outcomes than blacks in less segregated areas.”63 The authors of the analysis concluded that “a one standard deviation decrease in segregation would eliminate one-third of the black-white diferences in most of our outcomes.”64 Living in a racially segregated neighborhood is associated with almost every illness one could think of, such as heart disease, obesity, tuberculosis, reduced life expectancy, depression, and infant mortality.65 Part of the story is that poor, segregated neighborhoods are often less salubrious places to live. Urban planners tend to use areas with high minority populations for land use that exposes communities to environmental hazards.66 Further, these areas tend to
57 Tama Leventhal & Jeanne Brooks-Gunn, Moving to Opportunity: An Experimental Study of Neighborhood Efects on Mental Health, 93 Am. J. Pub. Health 1576, 1576 (2003). 58 Id. 59 Jens Ludwig et al., Neighborhood Efects on the Long-Term Well-Being of Low- Income Adults, 337 Science 1505 (2012). 60 Jens Ludwig et al., Neighborhoods, Obesity, and Diabetes — A Randomized Social Experiment, 265 New Eng. J. Med. 1509, 1509 (2011). 61 Raj Chetty et al., The Efects of Exposure to Better Neighborhoods on Children: New Evidence from the Moving to Opportunity Experiment, 106 Am. Econ. Rev. 855, 899 (2016). 62 John R. Logan & Brian J. Stults, The Persistence of Segregation in the Metropolis: New Findings from the 2010 Census 6–7 (2011). 63 David M. Cutler & Edward L. Glaeser, Are Ghettos Good or Bad?, 12 Q.J. Econ. 827, 827 (1997). 64 Id. 65 Dolores Acevedo-Garcia et al., Future Directions in Residential Segregation and Health Research: A Multilevel Approach, 93 Am. J. Pub. Health 215, 215–16 (2003). 66 An example of this can be seen in an analysis of zoning changes over four VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 265 lack basic amenities such as healthcare facilities, stores with healthy foods, and transportation centers.67 There is even research to suggest that urban trees could reduce crime,68 while vacant properties are associated with crime and reduced collective efcacy69—the social glue that helps maintain community health. If this were all there was to it, public policy might plausibly focus its attention on improving conditions in areas of concentrated poverty and racial segregation—except for the fact that, as the Supreme Court at least temporarily grasped in Brown v. Board of Education, separate is inherently unequal.70 The political and other benefts of having the better-of on your team in campaigns for good schools, parks, and transportation are obvious. Less obvious, but apparently equally real, are the benefts that come (to rich and poor of all races) of rubbing shoulders at work, school, and home.71 Studies of school integration found that students in integrated schools have higher average test scores, are less likely to drop out, and are more likely to enroll in college.72 Integrated classrooms encourage critical thinking, problem solving, and creativity for all students.73 The benefts of integration at the population level have been documented in Raj Chetty’s infuential work.74 His work has been
decades in NYC that found that major manufacturing zones, which bring with them environmental hazards, were generally characterized with a “higher percentage of minority populations than borough or city averages” and “lower than average incomes and rates of home ownership.” Juliana Maantay, Zoning, Equity, and Public Health, 91 Am. J. Pub. Health 1033, 1037 (2001). 67 Nat’l Research Council & Inst. of Med., U.S. Health in International Perspective: Shorter Lives, Poorer Health 192– 206 (Steven H. Woolf & Laudan Aron eds., 2013). 68 Michelle C. Kondo et al., The Association Between Urban Trees and Crime: Evidence from the Spread of the Emerald Ash Borer in Cincinnati, 157 Landscape Urb. Plan. 193, 198 (2017). 69 Eugenia Garvin et al., More Than Just an Eyesore: Local Insights and Solutions on Vacant Land and Urban Health, 90 J. Urb. Health 412, 413 (2012). 70 Brown v. Board of Educ., 347 U.S. 483, 495 (1954). 71 See Scott E. Page, The Difference: How the Power of Diversity Creates Better Groups, Firms, Schools, and Societies (2008). 72 Amy Stuart Wells et al., The Century Found., How Racially Diverse Schools and Classrooms Can Benefit All Students 8, 10–11, 14 (2016), https://s3-us-west-2.amazonaws.com/production.tcf.org/ app/uploads/2016/02/09142501/HowRaciallyDiverse_AmyStuartWells-11. pdf. 73 Id. 74 See generally Raj Chetty et al., The Association Between Income and Life Expectancy in the United States, 2001-2014, 315 J. Am. Med. Ass’n 1750 (2016); Raj Chetty 266 Gutman, Moran-McCabe, & Burris particularly useful in its focus on social mobility and long-term access to economic opportunity. 75 Mobility, defned as the ability to fnancially fair better than one’s parents, has, on average, been either fat or declining (depending on the measure used) throughout the majority of the 20th century in the U.S.76 Additionally, mobility is distributed unevenly across the U.S., with some areas having more upward mobility than others.77 Research on the characteristics of neighborhoods shows that both racial and economic segregation impede social mobility.78 Where MTO showed the benefts of leaving a poor neighborhood, further geographically granular analysis fnds that black people living in racially segregated neighborhoods79 and neighborhoods with high levels of racial bias80 pay a high price in social mobility compared to those living in more afuent and integrated areas with less bias.81
III. Legal Levers for Health Equity in Housing The problem of housing in America refects a variety of factors, such as: market issues, a history of afrmative legal support for segregation, stagnating wages, rising inequality, and a decline in government investment and regulatory capacity. Since housing- related problems are a refection of a system, tackling them as if they were discreet problems has a low chance of having a substantial impact on the overall problem. The frst step toward a more cross-
et al., Relationships Between Income, Health Behaviors, and Life Expectancy: Reply, 316 J. Am. Med. Ass’n 880 (2016); Raj Chetty et al., The Fading American Dream: Trends in Absolute Income Mobility Since 1940, 356 Sci. 398 (2017); Raj Chetty & Nathaniel Hendren, The Impacts of Neighborhoods on Intergenerational Mobility II: County-Level Estimates, 133 Q.J. Econ. 1163 (2018). 75 Raj Chetty et al., The Efects of Exposure to Better Neighborhoods on Children: New Evidence from the Moving to Opportunity Experiment, 106 Am. Econ. R. 855, 899 (2016); Raj Chetty & Nathaniel Hendren, The Impacts of Neighborhoods on Intergenerational Mobility I: Childhood Exposure Efects, 133 Q.J. Econ. 1107 (2018). 76 Raj Chetty et al., The Fading American Dream: Trends in Absolute Income Mobility Since 1940, 356 Sci. 398, 398 (2017). 77 Raj Chetty et al., Where is the Land of Opportunity? The Geography of Intergenerational Mobility in the United States, 129 Q.J. Econ. 1553, 1620 (2014). 78 Id. 1604. 79 Id. 1553–1623. 80 See Raj Chetty et al., Race and Economic Opportunity in the United States: An Intergenerational Perspective (Nat’l Bureau of Econ. Research, Working Paper No. 24441, 2018). 81 Chetty & Hendren, supra note 74. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 267 cutting campaign is to describe the system to be infuenced, and to specify the legal levers that may be used to do the infuencing. Our model is a heuristic tool to help people interested in a systematic approach promote greater health equity in housing. It aims to pull together, in one picture, the key factors many have identifed serially. As we will canvas in Part IV there is very little research evidence addressing whether most of the individual levers actually do the specifc things they purport to do, let alone whether they operate in synergy with other levers. The fgure below depicts the model we use in this article.
Figure 2: A Legal Levers Model for Health Equity
The domain of increasing the supply of new, afordable housing covers legal tools that infuence fnancing, location, cost, and character of new housing. The levers that we identifed as key in this domain are as follows. Low-Income Housing Tax Credit program (LIHTC): Established by the Tax Reform Act of 1986, the LIHTC is administered by the U.S. Department of Treasury and is intended to incentivize fnancial institutions to invest in afordable housing developments. Through the program, developers can compete for tax credits, which they can “sell” to the banks in return for project fnancing. LIHTC authorizes state housing fnance agencies to issue tax credits to developers through a competitive process, which involves a call for proposals from developers.82 The key legal element is the Qualifed Allocation
82 U.S. Dep’t of Treasury, Office of the Comptroller of the Currency, Low-Income Housing Tax Credits: Affordable 268 Gutman, Moran-McCabe, & Burris
Plan (QAP) that each state agency must have to establish eligibility priorities and criteria for awarding tax credits.83 QAPs are usually drafted annually. Land use regulations (zoning): These rules are set by localities regulating what can and cannot be built on specifc land parcels. A key feature of land use regulation is whether the parcel is zoned for commercial or residential purposes. If the parcel is used for residential purposes, regulations may address occupancy limits, types of housing (single family housing, multifamily housing, etc.), lot sizes, and architectural features. Land banks: Land banks facilitate temporary management and disposal of problem properties through mechanisms specifc to local and state law. Problem properties include those that have been abandoned or are tax-delinquent.84 Land banks assure that land is properly titled and unencumbered by liability, and organize transfer to new owners consistent with community development plans. Anti-Vacancy Laws: Some distressed units have deteriorated to a point that it might be cheaper for the owner to abandon them than to fx them. Since vacant properties can negatively afect the community in the form of decreasing property values of neighboring homes, some states allow neighbors to sue the abandoning property owner and seek damages for the lost value.85 These suits could theoretically have a deterrent efect on abandonment, and may be seen as a lever to maintain existing housing. In practice, these laws seem to kick in only once a property is a total loss, and to operate along with land banks as a mechanism for redevelopment. Many jurisdictions also have vacant property registration ordinances, which require owners of vacant properties to pay a fee and register their property.86 Land trusts: The land trust is a device for maintaining the long-term afordability of new housing. The basic idea behind a land trust is the separation of home ownership and land ownership. Community land trusts acquire land and lease parcels to low-income home seekers through a long-term, renewable lease. When the
Housing Investment Opportunities for Banks (2014). 83 26 U.S.C. § 42(m)(1) (2018). 84 Frank S. Alexander, Land Banks and Land Banking (2d ed. 2015). 85 See, e.g., Tenn. Code Ann. §§ 13-6-101, 13-6-104(a) (2018). 86 U.S. Gov’t Accountability Off., GAO-12-34, Vacant Properties: Growing Number Increases Communities’ Costs and Challenges 59–61 (2011). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 269 homeowner wants to move and sell the house, he or she is obligated to sell the property back to the land trust or to another low-income family under conditions that insure afordability. This way, the parcel remains afordable for the next owner. Some municipalities support existing trusts through funding, through reduced tax burdens on resale-restricted homes built on a trust’s land, or through waiving administrative/impact fees.87 Building codes: The bundle of regulations specifying standards for new building construction is commonly known as a building code. These codes, usually set by localities and states but based on models created by independent standards organizations, could cover a slew of issues including: building structure, fre safety, environmental hazards, water and electricity systems, materials that can and cannot be used, energy efciency standards, and accessibility requirements. Since the 1990s, the leader of the building code industry has been the International Code Council (ICC). The majority of states use the model codes released by the ICC as their building codes.88 The second action domain in our model that tackles the health and afordability problem head on is: maintaining existing housing as afordable, stable, and safe, which covers a variety of legal levers that govern housing quality and the willingness and capacity of tenants and owners to stay in their dwellings.89 The levers in this
87 John Emmeus Davis & Rick Jacobus, Lincoln Inst. of Land Policy, The City-CLT Partnership: Municipal Support for Community Land Trusts (2008), https://www.lincolninst.edu/sites/default/fles/ pubfles/the-city-clt-partnership-full.pdf. 88 David Listokin & David B. Hattis, Building Codes and Housing, 8 Cityscape 21, 29–31 (2005). 89 This domain encompasses eforts to manage the problems of gentrifcation (the process of redesigning lower-income neighborhoods to suit middle- class preferences) and “globalization” (the phenomenon of cities becoming magnates for overseas residential investment). Both push up rents and housing prices, imperiling the tenancy of existing residents. Because this Article focuses on the housing struggles of low-income people, we do not address the globalization issue and its legal levers per se. See, e.g., Conor Dougherty, In Vancouver, a Housing Frenzy That Even Owners Want to End, N.Y. Times (June 2, 2018), https://www.nytimes.com/2018/06/02/business/ economy/vancouver-housing.html (reporting on legal eforts of Canadian global city to suppress rise in housing presses). By contrast, gentrifcation and its management present both challenges and opportunities for health equity in housing. Legal levers for gentrifcation management, like housing code enforcement, stronger regulation of condo conversion, use of transfer taxes to deter speculation, and property tax relief for existing home owners, have been identifed. Donald C. Bryant, Jr. & Henry W. McGee, Jr., Gentrifcation and the 270 Gutman, Moran-McCabe, & Burris domain are as follows. Housing code enforcement: Housing codes concern the function, condition, and maintenance of housing.90 Housing code enforcement is the activity, usually conducted on the municipal level, to ensure that units are kept up to code. 91 In general, housing code enforcement eforts start with something that ignites an inspection (complaint, strategic choice of municipality, point of sale/rent), then proceeds to an inspection, remediation, and an abatement process. Landlord-tenant law: A lease is a contract, and the body of law regulating the residential lease is usually referred to as “landlord- tenant” law. During the late 1960s, a “revolution” in landlord-tenant law emerged.92 In 1970, the court in Javins v. First National Realty Corp. confrmed the existence of an implied warranty of habitability.93 A warranty of habitability promises that the premises will be suitable and safe for residential use, and in theory gives tenants a legal basis to demand repairs or to take self-help measures, such as withholding rent.94 Since the Javins decision, courts in many other states have adopted the warranty, and state legislators have enacted statutory warranties. All states but Arkansas now recognize a general implied warranty of habitability in residential leases.95 Further, all states have enacted some form of landlord-tenant statutes. These laws provide a
Law: Combatting Urban Displacement, 25 Wash. U. J. Urb. & Contemp. L. 43 (1983); see also Leila Ghafari et al., Toward a Socially Acceptable Gentrifcation: A Review of Strategies and Practices Against Displacement, Geography Compass, Feb. 2018, at 1 (reviewing strategies to protect existing residents). For purposes of this Article, we do not treat gentrifcation as an independent problem or domain, but as one expression of the problems of segregation, housing shortage, lack of economic agency, and poor governance. 90 H. Laurence Ross, Housing Code Enforcement and Urban Decline, 6 J. Affordable Housing & Community Dev. L. 29, 31 (1996). 91 Code enforcement agencies should accomplish the following three goals in order to be efective: (1) identify code violations; (2) monitor properties that violate the code, and take action when the issue is not remediated; and (3) engage in a remediation process to either restore or demolish the property. Marilyn L. Uzdavines, Barking Dogs: Code Enforcement is all Bark and No Bite (Unless the Inspectors Have Assault Rifes), 54 Washburn L.J. 161, 163 (2014). 92 Edward H. Rabin, The Revolution in Residential Landlord-Tenant Law: Causes and Consequences, 69 Cornell L. Rev. 517, 520–21 (1984). 93 Javins v. First Nat’l Realty Corp., 428 F.2d 1071, 1072–73 (D.C. Cir. 1970). 94 Corey Mostafa, The Implied Warranty of Habitability, Foreseeability, and Landlord Liability for Third-Party Criminal Acts Against Tenants, 54 UCLA L. Rev. 971, 980–81 (2007). 95 Melissa T. Lonegrass, Convergence in Contort: Landlord Liability for Defective Premises in Comparative Perspective, 85 Tul. L. Rev. 413, 423 (2010). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 271 varying degree of protection, depending on the jurisdiction. Nuisance (or “crime free”) property ordinances: These ordinances are municipal in nature and generally label some type of conduct (e.g., calling the police or other emergency services) a nuisance. They require the landlord or homeowner to abate the nuisance or sufer penalties such as fnes, loss of rental permits, condemnation of property, or even incarceration.96 The typical mechanism to abate is eviction. Just-cause (or “good-cause” or “no-fault”) eviction laws: These laws mandate that landlords may evict tenants only for a good reason, such as damage to the property, non-payment of rent, or other lease violations.97 While just-cause eviction is a standard protection in federally subsidized housing, many tenants in the private rental market do not enjoy the same safeguard.98 As of 2008, only three states and the District of Columbia have a just-cause eviction law that protects some, if not all, tenants.99 Several cities, including Oakland, San Francisco, and Los Angeles have just-cause eviction laws.100 Free legal representation in housing court: When low-income tenants meet their landlords in court, usually the landlord is armed with a lawyer while the tenant is not. Mostly, legal help for tenants is accomplished through a fund that pays for representation. However, in New York City, a law was enacted to require that, as of July 31, 2022, all low-income tenants receive legal representation.101 Rent control: This lever consists of legal schemes that prevent
96 American Civil Liberties Union Women’s Rights Project, Silenced: How Nuisance Ordinances Punish Crime Victims in New York 3 (2015), https://www.aclu.org/sites/default/fles/feld_ document/equ15-report-nuisanceord-rel3.pdf [hereinafter ACLU]. 97 Marc Jolin, Good Cause Eviction and the Low Income Housing Tax Credit, 67 U. Chi. L. Rev. 521, 522, 529–30 (2000). 98 Id. at 522. For tenants receiving federal housing assistance, the illegal drug- related activity of other household members or guests may be considered good cause for evicting the entire household. 24 C.F.R. § 5.858 (2018). 99 Aleatra P. Williams, Real Estate Market Meltdown, Foreclosures and Tenants’ Rights, 43 Ind. L. Rev. 1185, 1204–05 (2010); Florence Wagman Roisman, The Right to Remain: Common Law Protections for Security of Tenure: An Essay in Honor of John Otis Calmore, 86 N.C. L. Rev. 817, 834–35 (2008). 100 Roisman, supra note 99, at 836–37; Williams, supra note 99, at 1205; PolicyLink, Equitable Development Toolkit: Just Cause Eviction Controls 2 (2002), http://www.policylink.org/sites/default/ fles/just-cause-eviction-controls.pdf. 101 N.Y.C., Admin. Code §§ 26-1301 to -1302 (2018). 272 Gutman, Moran-McCabe, & Burris excessive increases in rent, either by creating a strict rent ceiling, or in softer, more sophisticated, ways. Rent control can help maintain the afordability of housing units without depriving landlords of the incentive to maintain the property.102 Rent control has been widely used since the 1940s, but has gone out of fashion.103 Today, only four states and the District of Columbia have rent control laws, and the majority of states preempt localities from enacting rent control measures.104 The domain of afrmatively furthering fair housing covers the legal levers used to actively promote racial and socio-economic diversity in housing. Fair housing protections: Fair housing law might be traced back to the Shelley v. Kraemer case, which held racially restrictive covenants legally unenforceable,105 but was symbolically launched in April 1968 when Lyndon B. Johnson signed the Fair Housing Act into law. The Act, as amended in 1988 by the Fair Housing Amendments Act, prohibits housing discrimination based on race, color, religion, national origin, sex, disability, and familial status.106 In 2015, the U.S. Supreme Court afrmed that the Act protects not only against intentional discrimination, but also against facially neutral policies that have a disparate impact on one of the protected classes.107 Fair housing laws regulate not only the rental and sale of housing, but also insurance and lending transactions, such as prohibiting predatory mortgage lending based on race108 (“reverse redlining”109). As of August 1, 2017, all states except Mississippi have enacted a fair housing law of their own, either reiterating federal protections or expanding upon them.110
102 See Blair Jenkins, Rent Control: Do Economists Agree?, 6 Econ J. Watch 73, 79–83 (2009) (reviewing history and economic opinion on rent control). 103 Matthew Desmond & Monica Bell, Housing, Poverty, and the Law, 11 Ann. Rev. L. Soc. Sci. 15, 16–17 (2015). 104 Rent Control Laws by State, Nat’l Multifamily Housing Council (Aug. 29, 2018), https://www.nmhc.org/research-insight/analysis-and-guidance/ rent-control-laws-by-state/. 105 Shelley v. Kraemer, 334 U.S. 1 (1948). 106 42 U.S.C. §§ 3601–3619 (2012). 107 Texas Dep’t of Hous. and Cmty. Afairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2518 (2015). 108 42 U.S.C. § 3605 (2012). 109 Richard Rothstein, The Color of Law 109–13 (2017). 110 The Policy Surveillance Program, State Fair Housing Protections, Ctr. for Pub. Health Law Research, Temple Univ. Beasley School of Law (Aug. 1, 2017), http://lawatlas.org/datasets/state-fair-housing- VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 273
Afrmatively Furthering Fair Housing rule: The Fair Housing Act not only prohibits housing discrimination, but also imposes a duty on HUD and its program participants to afrmatively further fair housing (AFFH)—to take meaningful steps to promote integration.111 This duty applies to state and local governments that receive funds from HUD.112 The AFFH obligation is the broadest potential legal lever for achieving integration over the long term. The law, now specifed through a 2015 regulation (the AFFH rule),113 provides a mechanism to induce systematic local and regional planning, monitor implementation, and use the threat of withholding funds to ensure that the mandate is carried out. The 2015 rule required about 1,200 municipalities to conduct an assessment of their fair housing needs to be submitted by October 31, 2020, but the rule has efectively been suspended by HUD as explained in Part IV. Eight states have an AFFH requirement in their state fair housing law.114 Inclusionary zoning: By limiting the amount of space in a community that can be used for afordable, multi-family housing through devices like minimum lot requirements and density limits, conventional zoning schemes exclude lower-income people.115 Inclusionary zoning is a legal lever that municipalities can use to require that a specifed proportion of new housing units be afordable. It can incentivize or force developers to include afordable units in their projects, or to contribute funds toward the construction of afordable units elsewhere in the community. As of 2017, almost 900 jurisdictions have inclusionary zoning schemes.116 State-level mandates: In some states, various legal devices have been used to counter zoning and planning barriers to afordable housing. These requirements are based on income and not on race, but given how closely associated race and income are, the
protections-1498143743. 111 42 U.S.C. § 3608(e)(5) (2012). 112 Timothy M. Smyth et al., The Fair Housing Act: The Evolving Regulatory Landscape for Federal Grant Recipients and Sub-Recipients, 23 J. Affordable Housing & Community Dev. L. 231, 235 (2015); 24 C.F.R. §§ 91.225(a)(1), 91.325(a) (1) (2018); 24 C.F.R. §§ 570.487(b), 570.601(a)(2) (2018). 113 24 C.F.R. §§ 5.150–5.168 (2018). 114 The Policy Surveillance Program, supra note 110. 115 Douglas S. Massey et al., Climbing Mount Laurel 18-19 (2013). 116 Emily Thaden & Ruoniu Wang, Inclusionary Housing in the United States: Prevalence, Impact, and Practices 11 (Lincoln Inst. of Land Policy, Working Paper No. WP17ET1, 2017), https://www.lincolninst.edu/sites/default/fles/ pubfles/thaden_wp17et1_0.pdf. 274 Gutman, Moran-McCabe, & Burris requirements theoretically could work as a force against racial segregation as well as poverty concentration. The most explicit requirement came out of litigation in Mt. Laurel, New Jersey and led to a still-unique legal lever: a requirement that all municipalities in the state develop/accommodate their “fair share” of afordable housing. Other states have taken action to make the development of afordable housing in all neighborhoods easier by: simplifying permit processes (Massachusetts),117 speeding appeals of adverse zoning decisions (Connecticut),118 or requiring municipalities to plan for and assist the development of afordable housing (California).119 The domain of protecting and enhancing economic choice for the poor addresses the factors that infuence the ability of poor people to get, hold, and spend resources sufciently to have healthy options in the housing market. It refects the fact that people struggling for housing are not passive objects of policy and market forces, but are people who can and do strive with determination and creativity to fnd suitable places to live. Housing Choice Vouchers: Established in 1974,120 the Housing Choice Voucher (HCV) program is administered by public housing agencies (PHAs), and allows low-income individuals to rent private housing while generally paying no more than 30% of their income in rent, unless the rent is higher than the local payment standard.121 Voucher holders select units that meet the program’s housing quality standards, and if the PHA approves the unit, it will enter a contract with the owner to pay the remainder of the rent on behalf of the tenant.122 Other voucher or housing support funding may be provided through special programs for veterans or the homeless. 123 The Mortgage Interest Deduction: First included in the income
117 See, e.g., Mass. Gen. Laws ch. 40B, §§ 20–23 (2018). 118 Conn. Gen. Stat. § 8-30g(f) (2017). 119 Cal. Gov’t Code § 65583(c) (West 2018). 120 12 U.S.C. § 1706e (1988) (repealed 1991); 42 U.S.C. § 1437f (2018). 121 24 C.F.R. § 982.1 (2018). 122 Id. 123 42 U.S.C. § 1437f(o)(19) (2018). This includes Medicaid. There is a movement of physicians who argue that housing is the “prescription” that they want to write for their patients. Since 2015 Medicaid funds can be used to pay for housing for the chronically homeless. Michael Ollove, States Freed to Use Medicaid Money for Housing, Stateline (Nov. 20, 2015), http://www. pewtrusts.org/en/research-and-analysis/blogs/stateline/2015/11/20/states- freed-to-use-medicaid-money-for-housing; Kathy Moses & Rachel Davis, Housing Is a Prescription for Better Health, Health Affairs (July 22, 2015), https://www.healthafairs.org/do/10.1377/hblog20150722.049472/full/. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 275 tax code in 1913, the mortgage interest deduction (MID) is currently one of the largest tax deductions in the tax code and the largest housing subsidy. In its current form, the MID is intended to promote homeownership by allowing homeowners to deduct their mortgage interest on a principle of up to $750,000 and up to two residences.124 Consumer protections against predatory lending: There is a slew of law that is intended to protect low and middle-income borrowers from predatory practices. The Fair Housing Act125 and the Equal Credit Opportunity Act (ECOA)126 prohibit lending discrimination based on race, color, national origin, religion, sex, and other protected classes. Predatory lending can be a discriminatory practice if members of protected classes are required to pay higher costs or interest rates than others. The law gives the Department of Justice (DOJ) authority to take action against fnancial institutions that engage in discriminatory lending practices. Since 2011, the Consumer Financial Protection Bureau (CFPB) has assumed the role of point agency for all matters of compliance with federal consumer protection laws, including the enforcement of fair lending laws.127 In the context of housing, fair lending is often thought of as relating to mortgages, but we take a more holistic view and include payday lending. Storefront payday lending is legal in 36 states.128 Some states enacted interest rate limits intended to protect consumers.129 Minimum wage: The federal minimum wage currently stands at $7.25 per hour of work.130 As of 2016, all but fve southern states enacted minimum wage laws of their own, and in seven states the minimum wage is lower than the federal minimum wage, and as such, is non-binding.131 Earned Income Tax Credit: The Earned Income Tax Credit
124 26 U.S.C. § 163(h) (2018). See Roberta F. Mann, The (Not So) Little House on the Prairie: The Hidden Costs of the Home Mortgage Interest Deduction, 32 Ariz. St. L.J. 1347, 1348–49 (2000). 125 42 U.S.C. § 3605 (2018). 126 15 U.S.C. § 1691 (2018). 127 12 U.S.C. §§ 5511, 5514 (2018). 128 Pew Charitable Trs., How State Rate Limits Affect Payday Loan Prices 1 (2014), https://www.pewtrusts.org/~/media/legacy/uploadedfles/ pcs/contentlevel_pages/fact_sheets/stateratelimitsfactsheetpdf.pdf. 129 Id. 130 Minimum Wage Tracker, Econ. Pol’y Inst., https://www.epi.org/minimum- wage-tracker/ (last visited Jan. 2, 2019). 131 Policy Surveillance Program, Minimum Wage Laws Map, LawAtlas, http:// legacy.lawatlas.org/query?dataset=minimum-wage-laws-1457972234 (last visited Jan. 2, 2019). 276 Gutman, Moran-McCabe, & Burris
(EITC) is another lever intended to directly impact the income of the working poor. The EITC was designed to support low- and moderate- income working families with children. Like minimum wage, the EITC is a federal program, but states can expand on it and provide more generous payments. Twenty-nine states and the District of Columbia do expand on EITC. In 2016, the program assisted almost 26 million households. Unlike other benefts, EITC is most often dispersed once per year, in a lump sum.132 Finally, surrounding the other domains is the element of governance. This domain addresses the fact that all of the laws and practices we have discussed operate within larger, overlapping systems. Governance can be defned as “the management of the course of events in a social system.”133 In its public management sense, governance refers to the set of “meta-levers” (like regional planning authority) through which government can try to strategically coordinate the many individual legal and policy levers for housing development, preservation, and equity. In a broader sense, governance encompasses how policymakers, citizens, businesses, and other individuals and organizations manage the law (and each other) to attain their ends. Regional governance law: Regional governance focuses on institutional approaches to implement regional plans, and has been defned as “deliberate eforts at collective action in environments of multiple governmental jurisdictions.”134 Intergovernmental approaches can take various forms, such as informal cooperation, inter-local service contracts, joint power agreements, or regional planning commissions.135 Regional planning commissions are generally “empowered to gather and distribute information, to prepare a regional plan, and to provide . . . technical services to local planning boards.”136 However, the commission does not generally
132 Policy Basics: State Earned Income Tax Credits, Ctr. on Budget & Pol’y Priorities, https://www.cbpp.org/research/state-budget-and-tax/policy- basics-state-earned-income-tax-credits (last updated Aug. 23, 2017); Policy Basics: The Earned Income Tax Credit, Ctr. on Budget & Pol’y Priorities, https://www.cbpp.org/research/federal-tax/policy-basics-the-earned- income-tax-credit (last updated Apr. 19, 2018). 133 Scott Burris et al., Nodal Governance, 30 Austl. J. Legal Phil. 30 (2005). 134 Brian W. Ohm, Is There a Law of Regional Planning?, 4 Belmont L. Rev. 35, 38 (2017) (quoting Ethan Seltzer & Armando Carbonell, Regional Planning in America 10 (2011) (citation omitted)). 135 Id. at 38. 136 Patricia Salkin, American Law of Zoning § 10:9 (5th ed. 2018). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 277 have authority to require municipalities to implement the regional plan.137 Governance elements of other legal levers: Many of the legal levers that were identifed above relate to the governance of housing markets. For example, the LIHTC QAP is a lever for shaping the character and location of a substantial proportion of new afordable housing, as are fair share laws and other mechanisms for overcoming zoning barriers. The federal AFFH Rule can likewise be understood as a compulsory planning mechanism backed by federal fnancial incentives. In the governance section below, we describe some examples of those interactions.
IV. The Many Things We Do Not Know About the Impact of Basic Housing Laws While there are many laws infuencing housing, there are still many unknowns regarding the impact of these laws. This form of ignorance is dangerous. It fosters and supports the belief that problems that have been addressed in law have been solved, or at least are in the process of being solved, when in fact the “solutions” may be fawed in design, implementation, or both. This part explores research into the workings and efects of the most prominent legal levers in our heuristic model. Most studies are peer-reviewed, but not-for-proft groups’ reports comprise much of the literature in some domains. Aside from MTO, we did not fnd randomized controlled trials on the impact of law on housing related outcomes. Rather, the literature is largely comprised of what would ordinarily be considered low-quality evidence: observational studies of one or a few instances over short time spans without strong design elements to support causal inferences.138 There are few studies exploiting changes in policy as a rigorous, natural experiment over time. We therefore do not explicitly rate the strength of evidence, but start with the general caveat that virtually all of our knowledge of the workings of the legal levers we describe should be approached with caution.
137 Id. 138 See L Rychetnik et al., Criteria for Evaluating Evidence on Public Health Interventions, 56 J. Epidemiology & Community Health 119, 120 (2002); see generally Public Health Law Research: Theory and Methods 93 (Alexander Wagenaar & Scott Burris eds., 2013) (reviewing research methods in legal evaluation). 278 Gutman, Moran-McCabe, & Burris
A. Domain 1: Increasing the Supply of New Afordable Housing
1. The Low-Income Housing Tax Credit Program (LIHTC) Between 1987 and 2015, the federal government subsidized the building of more than three million housing units through LIHTC.139 The program has an annual budget of nearly $8 billion per year and between 1995 and 2016 has created an average of 108,810 units per year.140 Unfortunately, demand for afordable housing continues to outpace supply.141 It is plausible that more tax credits would lead to more units but the “big” empirical policy question is whether a system of tax credits is the most efcient way to build the afordable housing we need.142 That question is extremely difcult, if not impossible to answer. The decentralized, public-private approach to afordable housing fnance, of which LIHTC is the fulcrum, emerged from a more traditional government production model that was itself not meeting the need, and was vigorously attacked by proponents of a more conservative, free-market approach.143 In the matter of health equity in housing, we ask how and to what extent LIHTC contributes to greater economic and racial integration. The majority of LIHTC developments are sited in low-income neighborhoods,144 which often means predominantly non-white neighborhoods with fewer jobs, more pollution, and
139 Low-Income Housing Tax Credits, Off. Pol’y Dev. & Res., https://www. huduser.gov/portal/datasets/lihtc.html (last updated June 6, 2018). 140 Id. 141 U.S. Dep’t of Hous. & Urban Dev., Worst Case Housing Needs: 2017 Report to Congress ix-xi (2017), https://www.huduser.gov/portal/sites/ default/fles/pdf/Worst-Case-Housing-Needs.pdf. 142 That is, assuming that LIHTC survives. By slashing the corporate tax dramatically enough to seriously reduce what corporations owe, the Tax Cuts and Jobs Act dramatically decreased the demand for tax credits, but since LIHTC has bi-partisan support, Congress may yet maintain historical funding levels by other means. Conor Dougherty, Tax Overhaul Is a Blow to Afordable Housing Eforts, N.Y. Times (Jan. 18, 2018), https://www.nytimes. com/2018/01/18/business/economy/tax-housing.html. 143 For a historical view of housing policy and the “revolution” in approach of which LIHTC is a part, see David James Erickson, The Housing Policy Revolution: Networks And Neighborhoods xi-xiv (Urban Institute Press. 2009). 144 See Jean L. Cummings & Denise DiPasquale, The Low Income Housing Tax Credit: An Analysis of the First Ten Years, 10 Housing Pol’y Debate 251, 268–69 (1999). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 279 lower preforming schools.145 The decision regarding where to site a LIHTC development is based on the QAP. The Internal Revenue Code requires that the QAP give preference to projects located in high poverty census tracts and gives developers in those tracts a tax credit increase of up to 30%. Developers respond to this incentive by building more in high-poverty neighborhoods.146 The program also incentivizes building developments that are not mixed income. LIHTC requires that 20% or 40% of units in a development be afordable, depending on the level of afordability.147 However, states reward developments that have more afordable units by giving more tax credits to those developers.148 These rules of the game raise concern that LIHTC contributes to racial segregation and poverty concentration.149 Overall, studies of LIHTC’s impact on segregation show mixed results with modest efects either way. While LIHTC might not contribute actively to increased racial segregation and poverty concentration, it is clear that it is not a major force of racial and socioeconomic integration.150
145 Ingrid Gould Ellen et al., Gateway to Opportunity? Disparities in Neighborhood Conditions Among Low-Income Housing Tax Credit Residents, 28 Housing Pol’y Debate 572, 573 (2018). 146 Nathaniel Baum-Snow & Justin Marion, The Efects of Low Income Housing Tax Credit Developments on Neighborhoods, 93 J. Pub. Econ. 654 (2009). 147 See 26 U.S.C. § 42(g) (2018). 148 Edward L. Glaeser & Joseph Gyourko, Rethinking Federal Housing Policy 107 (2008). 149 The Inclusive Communities Project, a fair housing litigation group based in Texas, brought a law suit against the U.S. Department of Treasury claiming that LIHTC is “perpetuating racial segregation” and “relegating minority families to unequal conditions of slum, blight, and distress.” See Complaint at 6, Inclusive Cmtys. Project, Inc. v. U.S. Dep’t of Treasury, No. 3:14-CV-3013-D, 2016 WL 6397643 (N.D. Tex., Oct. 28, 2016). In 2010, Philip Tegeler, the President Executive Director of the Poverty and Race Research Action Council sent a letter to the department of the Treasury arguing that LIHTC “create[s] and perpetuate[s] racial segregation in assisted housing.” Letter from Philip Tegeler et al., President Exec. Dir., Poverty & Race Research Action Council, to Michael S. Barr, Assistant Sec’y for Fin. Insts., Dep’t of the Treasury (Oct. 26, 2010), http://www.prrac.org/pdf/civil_rights_letter_to_Michael_Barr_10- 26-10.pdf. 150 See Ingrid G. Ellen et al., Poverty Concentration and the Low Income Housing Tax Credit: Efects of Siting and Tenant Composition, 34 J. Hous. Econ. 49, 50, 58 (2016); Keren M. Horn & Katherine M. O’Regan, The Low Income Housing Tax Credit and Racial Segregation, 21 Hous. Pol’y Debate 443, 467 (2011); Matthew Freedman & Tamara McGavock, Low-Income Housing Development, Poverty Concentration, and Neighborhood Inequality, 34 J. Pol’y Analysis & Mgmt. 805 (2015); Lance Freeman & William Rohe, Subsidized Housing 280 Gutman, Moran-McCabe, & Burris
There are eforts to make LIHTC a stronger force for socioeconomic integration. Some states have been working on including provisions in the QAP that encourage siting of developments outside of high-poverty areas. For example, in 2009, Texas’s QAP started awarding points to developments that are in “high opportunity” areas. A pre-post analysis of LIHTC developments in San Antonio found that after the provision was put in place, more LIHTC units were sited in low-poverty neighborhoods.151 Similarly, since 2013, New Jersey’s QAP requires 60% of the tax credits to be allocated in areas with low poverty, such as prosperous suburbs.152 This change to the QAP has been shown to increase the number of LIHTC developments next to public transit, placing half of the credits in “job-center municipalities,” and in “profcient school districts.”153 Authors of a HUD report published in 2015 analyzed changes in the QAPs of 21 states between 2002 and 2010, and found that various types of opportunity provisions impact the siting outcomes of LIHTC developments.154 The report shows considerable variation in how states defne an opportunity area, the mechanism through which the state incorporates opportunity in the QAP (set asides, point changes, or others), and the impact of the change on locational outcomes. While some of the rules that govern LIHTC come from the treasury, every state program with its QAP is a diferent program in a sense. Since early 2002, there is a growing recognition of the importance of the QAP and, as such, we need research to help direct state agencies in their eforts to use LIHTC as a force for racial and social economic integration.
and Neighborhood Racial Transition: An Empirical Investigation, 11 Hous. Pol’y Debate 67–89 (2000); Nathaniel Baum-Snow & Justin Marion, The Efects of Low Income Housing Tax Credit Developments on Neighborhoods, 93 J. Pub. Econ. 654 (2009). 151 Rebecca J. Walter, et al., Comparing Opportunity Metrics and Locational Outcomes in the Low-Income Housing Tax Credit Program, 38 J. Plan. Educ. & Res. 449 (2018). 152 Tim Evans, New Jersey Future, Assessment of the New Jersey Low Income Housing Tax Credit Program 12–13 (2017), http://www. njfuture.org/wp-content/uploads/2017/05/New-Jersey-Future-Assessment- of-the-NJLIHTC-program.pdf. 153 Id. 154 U.S. Dep’t of Hous. & Urban Dev., Effect of QAP Incentives on the Location of LIHTC Properties (2015), https://www.novoco. com/sites/default/files/atoms/files/pdr_qap_incentive_location_lihtc_ properties_050615.pdf. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 281
2. Land Use Regulation Land use regulation has potential efects on health equity in housing across all of the domains of our model. It can infuence the cost of new housing, and can be a means of afrmatively encouraging or preventing integration. It is a primary instrument of planning. The classical economic case against zoning is that it raises costs, which constricts the supply of afordable housing. The most expeditious way to get people the housing they need is not to help tenants pay rent, but to relax regulations that restrict supply, and allow the invisible hand to achieve equilibrium. There is evidence to support this theoretical position, although it varies both in signifcance and magnitude.155 In its broadest form, the claim ignores the potential benefts of land use regulation, and its many particular forms. Land use regulations can be divided into fve categories: (1) limits of density and intensity; (2) design and performance standards; (3) moving costs (such as sewerage) from locality to developer; (4) banning development on specifc lots; and (5) controls on growth.156 The majority of studies that attempt to estimate the impact of land use regulation use crude measures to capture the regulation, so we remain in the dark as to the costs and benefts of particular elements of regulation. A review of empirical evidence concluded that “the most promising strategy for improving our understanding of the economic efects of zoning and land use restrictions would be to devote resources to measuring regulatory conditions systematically in a large cross-section of cities and metropolitan areas.”157 A few years after this recommendation, researchers from the Wharton School of the University of Pennsylvania conducted a survey of land use regulations in over 2,000 jurisdictions. The survey results, with additional data, were used to create a measure of the stringency of the regulatory environment in each community, called
155 For a review of the literature see John M. Quigley & Larry A. Rosenthal, The Efects of Land Use Regulations on the Price of Housing: What Do We Know? What Can We Learn?, 8 Cityscape 69, 69–70 (2005), and Ralph B. Mclaughlin, Land Use Regulation: Where Have We Been, Where Are We Going?, 29 Cities S50, S54 (2012). 156 Elizabeth Deakin & Douglas R. Porter, Growth Controls and Growth Management: A Summary and Review of Empirical Research, in Understanding Growth Management: Critical Issues and a Research Agenda 5–6 (David J. Brower & David R. Godschalk eds., 1989). 157 Quigley & Rosenthal, supra note 155, at 89, 100. 282 Gutman, Moran-McCabe, & Burris the Wharton Residential Land Use Regulatory Index (WRLURI).158 Using the WRLURI, the researchers found that coastal markets are more highly regulated,159 and were able to model a demand curve for housing160 and correlate housing elasticity to the amount of developable land.161 Further, since the index was used in a rigorous and scientifc manner, it is now used as a benchmark for indexing regulation.162 The WRLURI was a large step in the right direction. There are two next steps that will progress the research on land use regulations. The frst is moving from indexes to observable elements of the law. This move will enable evaluation of what parts of land use regulation drive supply efect, if any at all. Second, a longitudinal dataset of regulations must be built to increase the ability of studies to achieve causal inference.
3. Vacant Properties, Land Banks, and Land Trusts Vacant properties are a problem in cities throughout the U.S. In 2017, 9.3% of housing units in the U.S. were estimated to be vacant year-round.163 Vacant lots and properties are associated with neighborhood crime, illicit drug use, and a reduced perception of safety.164 As of 2011, “439 jurisdictions have enacted vacant property registration ordinances.”165 Another efort to estimate the prevalence of these ordinances coded more than 500 ordinances to a database.166 The popularity of these ordinances does not translate to research and evaluation. We found only one study that suggests
158 Joseph E. Gyourko et al., A New Measure of the Local Regulatory Environment for Housing Markets: Wharton Residential Land Use Regulatory Index, 45 Urb. Stud. 693–729 (2008). 159 Id. 160 Christian A.L. Hilber & Frédéric Robert-Nicoud, On the Origins of Land Use Regulations: Theory and Evidence from US Metro Areas, 75 J. Urb. Econ. 29–43 (2013). 161 Edward Glaeser et al., Housing Supply and Housing Bubbles, 64 J. Urb. Econ. 198–217 (2008). 162 Kristofer Jackson, Do Land Use Regulations Stife Residential Development? Evidence from California Cities, 91 J. Urb. Econ. 45–56 (2016). 163 U.S. Census Bureau, Quarterly Residential Vacancies and Homeownership, Fourth Quarter 2017 (2018), https://www.census. gov/housing/hvs/fles/qtr417/Q417press.pdf. 164 Eugenia Garvin et al., More Than Just an Eyesore: Local Insights and Solutions on Vacant Land and Urban Health, 90 J. Urb. Health 413, 420–21 (2013). 165 U.S. Gov’t. Accountability Off., supra note 99, at 61. 166 Yun Sang Lee et al., New Data on Local Vacant Property Registration Ordinances, 15 Cityscape 289 (2013). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 283 that these registration requirements actually reduce vacancy rates.167 Once the property is vacant, the challenge is to acquire and dispose of the land with reasonable dispatch. Land banks are a popular mechanism to do so. Along with securing a marketable title, land banks can (or should) become integral to the community development and planning process, helping to defne and promote desirable uses of vacant property. 168 A limited evaluation of literature fnds mostly positive results. An implementation study of fve land banks shows how “a land bank can operate as a local government authority to transcend the legal and structural impediments to conversion” of vacant properties to “assets.”169 The challenge in major land banking cities, where tens of thousands of properties may be vacant, is scaling up disposition. Although the land banks reviewed in the study held large amounts of land, the rate of disposition was much lower.170 While land banks can have measurable success locally,171 there is a question of whether they can be scaled to address the magnitude of the vacancy problem. For example, if the Philadelphia Land Bank disposed of 500 vacant parcels per year, and not a single new parcel became vacant, it would take about 83 years for Philadelphia to dispose of all 40,000 vacant properties.172 Scaling up is possible in theory, and would be expected to increase the magnitude of benefts compared to mechanisms like sherif’s sales, but it also increases administrative costs considerably.173 Interviews with more than 40 land bank ofcials show that the challenge for land banks is funding.174 While there is general agreement, mainly from non-peer reviewed evaluations, that
167 Thomas J. Fitzpatrick et al., The Efect of Local Housing Ordinances (Fed. Reserve Bank of Cleveland, Working Paper No. 1240, 2014). 168 Payton Heins & Tarik Abdelazim, Ctr. for Cmty. Progress, Take it to the Bank: How Land Banks Are Strengthening America’s Neighborhoods (2014), http://www.communityprogress.net/take-it- to-the-bank--how-land-banks-are-strengthening-america-s-neighborhoods- pages-466.php. 169 Frank S. Alexander, Land Bank Strategies for Renewing Urban Land, 14 J. Affordable Hous. & Community Dev. L. 140 (2005). 170 See id. at 156. 171 Tyler Borowy et al., Land Pol’y Inst. Mich. St. U., Economic Impacts of the Ingham County Land Bank: 2006–2012 (2013). 172 Phila. Land Bank, 2017 Strategic Plan & Performance Report 22 (2017), http://wp.philadelphialandbank.org/wordpress/wp-content/ uploads/2015/01/philadelphia-land-bank-strategic-plan-february-2017.pdf. 173 Id. at 34. 174 Heins & Abdelazim, supra note 168, at 18. 284 Gutman, Moran-McCabe, & Burris land banks are a force for good in communities, it is unclear if they can be scaled up to address systemic vacancy in cities with distressed housing stock. Another mechanism to increase the utilization of vacant land parcels is a community land trust. Similar to land banks, community land trusts show a lot of promise, but not to scale. Compared to other homeowners, community land bank homeowners had much lower rates of completed foreclosures throughout the foreclosure crisis of 2008–2010.175 This occurrence was due, in part, to the fact that the land trust helped delinquent homeowners sell their houses and avoid foreclosure.176 A few case studies on specifc land trusts show that they were able to help low-income people achieve homeownership, while retaining afordable housing.177 A national study of community land trusts in 2006 found that nearly 190 land trusts throughout the U.S. held 6,495 units.178
4. Building Codes Like land-use regulations, building codes are mechanisms to promote safety179 and support rational planning, but they may also afect the cost of new housing.180 Empirical interest in the basic costs and benefts of codes seems to have peaked in the 1970s
175 Emily Thaden, Stable Home Ownership in a Turbulent Economy: Delinquencies and Foreclosures Remain Low in Community Land Trusts 11 (Lincoln Inst. of Land Policy, Working Paper No. WP11ET1, 2011), https://www.lincolninst.edu/ sites/default/fles/pubfles/1936_1257_thaden_fnal.pdf. 176 Id. at 16. 177 Kenneth Temkin et al., The Urban Inst., Balancing Affordability and Opportunity: An Evaluation of Affordable Homeownership Programs with Long-term Affordability Controls, at iii (2010), https://www.urban.org/sites/default/files/publication/29291/412244- Balancing-Affordability-and-Opportunity-An-Evaluation-of-Affordable- Homeownership-Programs-with-Long-term-Afordability-Controls.PDF. 178 Yesim Sungu-Eryilmaz & Rosalind Greenstein, A National Study of Community Land Trusts 16 (Lincoln Inst. of Land Policy, Working Paper No. WP07YS1, 2007), http://cltnetwork.org/wp-content/uploads/2014/01/2007-A- National-Study-of-CLTs.pdf. 179 A clear example of this comes from seismic building codes that are intended to mitigate the impact of an earthquake on buildings. A review by the World Bank Group concludes that “[b]uilding code implementation has a crucial role to play in disaster risk reduction.” World Bank Group, Building Regulation for Resilience: Managing Risks for Safer Cities, at 13 (2015), https://www.gfdrr. org/sites/default/fles/publication/BRR%20report.pdf. 180 David Listokin & David B. Hattis, Building Codes and Housing, 8 Cityscape 21, 42 (2005). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 285 and 80s, including the publication of a 1969 report to the Douglas Commission on Urban Problems.181 This report identifed several building codes as wasteful practices.182 While multiple early studies found that more restrictive building codes (often unclear how defned) led to an increase in cost of construction and as such are restrictive,183 a study that aimed to determine the magnitude of the increase found that “the efects of local building codes on housing costs is, at most, small.”184 Building codes are often discussed in monolithic terms but can be separated into various types. Although specifc requirements may be debatable, fre codes, plumbing codes, and general safety codes are directly related to public health.185 On the other hand, regulations on room dimensions, though they may refect older notions of public health, are harder to justify epidemiologically and may unnecessarily infate housing costs; the general trend is for these types of codes to reduce in scope in recent years.186 A review of the current literature suggests that there is a need for an update to address today’s code and technology. As in the broader land use law literature, the majority of existing studies utilize a more or less fuzzy measure of restrictiveness, and measure cost without consideration of the potential benefts of these codes. For the policymaker, it is imperative to know if the increased cost of codes has a greater societal beneft, but thorough evaluation to estimate the beneft is not available.187 One study helped distinguish
181 Cty. of Santa Clara Planning Dep’t., Summary: The Douglas Commission Report (1969), https://searchworks.stanford.edu/view/4038271. 182 Sharon M. Oster & John M. Quigley, Regulatory Barriers to the Difusion of Innovation: Some Evidence from Building Codes, 8 The Bell J. of Econ. 361, 361–68 (1977). 183 Id.; Eli M. Noam, The Interaction of Building Codes and Housing Prices, 10 Am. Real Est. & Urb. Econ. Ass’n J. 394, 394–95 (1983). 184 Richard F. Muth & Elliot Wetzler, The Efect of Constraints on House Costs, 3 J. Urb. Econ. 57, 64 (1976). 185 See James Krieger & Donna L. Higgins, Housing and Health: Time Again for Public Health Action, 92 Am. J. Pub. Health 758, 763 (2002). 186 See generally Paul Boudreaux, The Housing Bias: Rethinking Land Use Laws for a Diverse New America (Palgrave Macmillan 1st ed. 2011) (cataloging the harms of traditional zoning); Listokin & Hattis, supra note 180, at 25. 187 A few studies do conduct these types of cost-beneft analysis for building codes. James K. Hammit et al., Harvard University, Residential Building Codes, Affordability, and Health Protection: A Risk- Tradeoff Approach 2 (1999) (“We estimate that a code change that increases the nationwide cost of constructing and maintaining homes by 286 Gutman, Moran-McCabe, & Burris code requirements that improve safety (fre codes/structural requirements) from those that are outdated or refect self-interested pressures of a professional or commercial group.188
B. Domain 2: Maintaining Existing Housing Afordable, Stable, and Safe
1. Housing Code Enforcement and Landlord-Tenant Law Approximately one-third of Americans rent their homes.189 High transaction costs and the dynamics of the rental market can result in unequal bargaining power between landlords and tenants. In addition, renters may be particularly vulnerable, as they are more likely than homeowners to have low incomes or to be minorities.190 A variety of laws regulate the relationship between landlords and tenants, including the implied warranty of habitability and state landlord-tenant laws. The implied warranty of habitability has long been seen in academic writing as an extremely weighty development. An abundance of articles discuss, praise, or critique the warranty, but virtually none empirically evaluate its actual use or impact. A recent article used historic rent data to estimate the efect of the implied warranty on rents.191 The author found that there is reason to believe that the implied warranty of habitability achieves its goal of improving housing conditions, but also leads to an increase in rents.192 The last study that took place before this 2010 study dates back to 1975.193 Neither article was peer-reviewed, and neither provides strong support for claims about the efect of the warranty
$150 (0.1% of the average cost to build a single-family home) would induce ofsetting risks yielding between 2 and 60 premature fatalities or, including morbidity efects, between 20 and 800 lost quality-adjusted life years (both discounted at 3%) each year the code provision remains in efect.”). 188 Listokin & Hattis, supra note 180, at 21 (providing a strong framework on how to assess building codes as well as a breakdown of codes that should be used in future research). 189 Megan E. Hatch, Statutory Protection for Renters: Classifcation of State Landlord– Tenant Policy Approaches, 27 Housing Pol’y Debate 98, 98 (2017). 190 Id. 191 Michael A. Brower, The “Backlash” of the Implied Warranty of Habitability: Theory vs. Analysis, 60 DePaul L. Rev. 849, 851–52 (2011). 192 Id. at 887. 193 Werner Z. Hirsch et al., Regression Analysis of the Efects of Habitability Laws upon Rent: An Empirical Observation on the Ackerman-Komesar Debate, 63 Calif. L. Rev. 1098, 1098 (1975). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 287 on quality or afordability. The state of the evaluation of other landlord-tenant law is not much better. A 1980 study using mixed methods to evaluate the utilization of landlord-tenant laws in two cities found that legislation has had little efect on landlord and tenant litigation.194 Since then, we found no evaluation of landlord-tenant litigation or the efect of law on their relations, and experts know little about its efect.195 A study of the Milwaukee market powerfully demonstrates the failure of landlord-tenant law in giving some leverage to tenants.196 Aside from Desmond’s recent work, there has been little research on what really happens in landlord-tenant disputes. It is unclear to what extent states enforce landlord-tenant laws, and to what extent tenants know about these laws or how to use them to protect their rights. Additionally, it is unknown how parties typically operate in the shadow of these laws where many, if not most, evictions are handled informally. The “revolution” in landlord-tenant law sparked a vigorous debate about the efects that housing code enforcement, tenant rights, and the implied warranty of habitability have on the poor. Two camps of legal scholars formed at the time, with Bruce Ackerman leading one and Neil Komesar leading the other, in a debate about whether housing code enforcement hurts the poor.197 However, “[d]espite all the ink spilled in this debate, little empirical research has been conducted to inform either position.”198 While there is a small body of literature suggesting that code enforcement achieves the goal of improving housing quality199 and reducing incidence of childhood lead poisoning,200 the efects on the housing market are still largely unevaluated. Publicly available data from Rochester, New York suggests that concentrated eforts
194 Samuel Jan Brakel & Donald M. McIntyre, The Uniform Residential Landlord and Tenant Act (URLTA) in Operation: Two Reports, 5 Am. B. Found. Res. J. 557, 557, 566 (1980). 195 Hatch, supra note 189. 196 Desmond, supra note 23. The tenants he followed in Milwaukee were consistently bullied by their landlords, and found little help in court. 197 Hirsch, et al., supra note 189, at 1116–17. 198 Desmond & Bell, supra note 103, at 22. 199 See, e.g., Carla Campbell et al., Philadelphia’s Lead Court Is Making a Diference, 38 J. Health Pol., Pol’y & L. 709, 709 (2013). 200 See Chinaro Kennedy et al., Primary Prevention of Lead Poisoning in Children: A Cross-Sectional Study to Evaluate State Specifc Lead-Based Paint Risk Reduction Laws in Preventing Lead Poisoning in Children, 13 Envtl. Health 1, 8 (2014). 288 Gutman, Moran-McCabe, & Burris to address lead did not result in a negative impact on housing markets.201 A case study from Minneapolis supports these results.202 However, an older study of three cities found that strict housing code enforcement contributed to urban blight.203 Given the diferent results from cities and a small body of empirical research, the debate remains open and policymakers who want to improve the adequacy of the rental housing stock without increasing rents are left in the dark. Research is needed on the impact strict housing code enforcement may have on factors such as rent levels, eviction rates, and number of rental units on the market. In addition, evaluation is needed on the efectiveness and impacts of potentially promising models, such as strategic code enforcement.204
2. Nuisance Property Ordinances It is estimated that more than 2,000 municipalities have nuisance and crime-free property ordinances.205 However, policy surveillance of these ordinances in the 40 most populous U.S. cities shows that there is wide variation regarding the type of conduct the city defnes as a nuisance, along with other key elements.206 There has been little research on the efects of these laws.
201 Katrina Smith Korfmacher et al., Rochester’s Lead Law: Evaluation of a Local Environmental Health Policy Innovation, 120 Envtl. Health Persp. 309, 309, 313 (2012). 202 Robin Powers Kinning, Selective Housing Code Enforcement and Low-Income Housing Policy: Minneapolis Case Study, 21 Fordham Urb. L.J. 159, 197 (1993). 203 H. Laurence Ross, Housing Code Enforcement as Law in Action, 17 Law & Pol’y 133, 158 (1995). 204 The Center for Community Progress, a leader in code enforcement and anti-blight eforts, defnes strategic code enforcement as, “[c]ode enforcement that goes beyond complaint response to strategically address systemic targets and focus on bringing properties into compliance with codes.” They further explain that the rationale is that “[c]omplaint- driven code enforcement, while necessary, is inefcient and leads to scattered outcomes rather than systematic compliance and neighborhood stabilization.” Alan Mallach, Ctr. for Cmty. Progress, Raising the Bar: A Short Guide to Landlord Incentives and Rental Property Regulation 4 (2015), http://mayorscaucus.org/wp-content/ uploads/2016/01/SSMMA_landlord-incentives_how-to-guide_fnal- am-12-28-15.pdf. 205 Kate Walz, Let’s Stop Criminalizing Victims of Domestic Violence, The Shriver Brief (Oct. 27, 2017), https://theshriverbrief.org/lets-stop-criminalizing- victims-of-domestic-violence-a72a06b50e42. 206 City Nuisance Property Ordinances, The Pol’y Surveillance Program: A Law Atlas Project (Aug. 1, 2017), http://lawatlas.org/datasets/city- nuisance-property-ordinances. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 289
An analysis of nuisance citations distributed in Milwaukee in 2008 and 2009 fnds that almost one in three citations were generated by domestic violence incidents, and that most property owners abated the nuisance by evicting abused women.207 Properties in predominantly black neighborhoods have the highest likelihood of receiving a nuisance designation. The authors concluded that a nuisance property ordinance “has the efect of forcing abused women to choose between calling the police on their abusers (only to risk eviction) or staying in their apartments (only to risk more abuse)” and could explain “why women from poor black neighborhoods are evicted at signifcantly higher rates than men.”208 An analysis of two cities in New York State fnds that “domestic violence was the single largest category of enforcement” under both cities’ nuisance ordinances, 209 adding to the concern that the results from Milwaukee are generalizable to other settings. The experience of domestic violence survivors reinforces the results from the statistics. A qualitative study interviewing 27 low- income African American women who survived domestic violence fnds the ordinances hinder access to safe and secure housing, as well as “discourag[e] them from calling 911.”210 Multiple states have enacted laws protecting the right to call for emergency assistance,211 but we found no empirical evaluation of these laws and whether they afect enforcement eforts on the ground. The harm of nuisance property ordinances may not be limited to people in need of emergency intervention. Some argue that these ordinances reduce the supply of rental housing by revoking property rental licenses, or by discouraging homeowners from providing rental housing because they do not want to be exposed to the possibility of nuisance enforcement.212 While the intuition behind the argument
207 Matthew Desmond & Nicol Valdez, Unpolicing the Urban Poor: Consequences of Third-Party Policing for Inner-City Women, 78 Am. Soc. Rev. 117, 118 (2013). 208 Id. 209 ACLU, supra note 96. 210 Gretchen W. Arnold, From Victim to Ofender: How Nuisance Property Laws Afect Battered Women, 2016 J. Interpersonal Violence 1, 1. 211 Nat’l Hous. Law Project, Housing Rights of Domestic Violence Survivors: A State and Local Law Compendium (2016), http://nhlp. org/fles/CombinedD-HousingStateLawCompendium.pdf. 212 Emily Werth, The Cost of Being “Crime Free”: Legal and Practical Consequences of Crime Free Rental Housing and Nuisance Property Ordinances 5, 9, 24 (2013), http://www.povertylaw. org/fles/advocacy/housing/ShriverCenter.HousingReport.08-2013.cost-of- 290 Gutman, Moran-McCabe, & Burris is plausible, we found no empirical evaluation to support it. There is a need for further research on the efects nuisance property ordinances have on victims of domestic violence, people with disabilities, and on the rental market in general.
3. Preventing Eviction—“Just-Cause” and Free Legal Representation In response to what some have called an eviction crisis, cities and states are looking for solutions to help protect renters. One solution is the enactment of “just-cause” eviction laws. Opponents of “just-cause” argue that just-cause evictions, like other tenant protections, hurt low-income renters by raising the cost of low- income housing, and reducing the number of afordable units that can be built.213 Proponents assert that any costs are justifed by the decrease in unjust and costly evictions.214 Just-cause protections, proponents argue, promote housing stability, particularly in areas where landlords might want to evict tenants to get higher rents.215 Just-cause and other changes in landlord-tenant law do not eliminate, and may increase, the need for legal services. For those parties negotiating in the shadow of law, there must be awareness of the protection and, between both landlords and tenants, some sense that courts truly police the justice of the cause.216 As of now, despite the salience of both the just-cause approach and eviction generally, we remain evidence-free. In recent years there has been a push for free legal representation of low income tenants in housing courts. At least one jurisdiction, New York City, has established a program in which free legal representation in housing court will be provided for all low-income tenants facing eviction.217 Some studies—including a randomized controlled trial—suggest that, unsurprisingly, lawyers
being-crime-free.report.pdf. 213 Jolin, supra note 97, at 532. Legal scholars have also analyzed just-cause evictions in the context of the takings clause. See Karl Manheim, Tenant Eviction Protection and the Takings Clause, 1989 Wis. L. Rev. 925, 927, 929 (1989); Laura L. Westray, Are Landlords Being Taken by the Good Cause Eviction Requirement?, 62 S. Cal. L. Rev. 321, 323, 366 (1988) (considering whether just-cause protections constitute a taking). 214 Jolin, supra note 97, at 534. 215 PolicyLink, supra note 100, at 1, 6. 216 See generally id.; Roisman, supra note 99, at 851–52. 217 N.Y.C., Admin. Code §§ 26-1301 to -1302 (2017). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 291 improve outcomes for tenants,218 but there is no existing evaluation of what happens when a city starts providing these services to all low- income residents. Key questions include: whether representation reduces informal evictions, how much added cost the measure creates for legitimate evictions, and whether a case-by-case system of dispute resolution at the point of eviction is the best use of public resources for helping poor tenants.
4. Rent control The idea of rent control has been heavily debated in economics literature. The classical economist argues that for the prices between the market rent and the lower rent imposed by rent control, there are tenants who are willing and able to pay, and landlords who are willing and able to supply. A large survey conducted in the 1990s found that 76.3% of economists working in the U.S. generally agree with the proposition “a ceiling on rents reduces the quantity and quality of available housing.”219 None of the other 40 propositions in the questionnaire had a higher consensus rate.220 Generally, rent control can be divided into strict price ceilings and the softer rent stabilization models. A comprehensive literature review of economic studies fnds that indeed rent control “creates many more problems than it solves.”221 The author of the review fnds negative impacts for strict and soft rent controls. The negative impacts go beyond housing supply. For example, one study fnds that “far from eliminating segregation, at least in New Jersey, rent control has appeared to increase it.”222 Refecting on rent control, Desmond comments that the literature on this topic has largely
218 See generally Carroll Seron et al., The Impact of Legal Counsel on Outcomes for Poor Tenants in New York City’s Housing Court: Results of a Randomized Experiment, 35 L. & Soc’y Rev. 419 (2001); D. James Greiner et al., The Limits of Unbundled Legal Assistance: A Randomized Study in a Massachusetts District Court and Prospects for the Future, 126 Harv. L. Rev. 901 (2013); Bos. Bar Ass’n Task Force on the Civil Right to Counsel, The Importance of Representation in Eviction Cases and Homelessness Prevention (Mar. 2012), http:// www.bostonbar.org/docs/default-document-library/bba-crtc-fnal-3-1-12.pdf. 219 Richard M. Alston et al., Is There a Consensus Among Economists in the 1990’s?, 82 Am. Econ. Rev. 203, 204 (1992). 220 Id. 221 Blair Jenkins, Rent Control: Do Economists Agree?, 6 Econ. J. Watch 73, 105 (2009) (quoting Peter Navarro, Rent Control in Cambridge, Massachusetts, 78 Pub. Int. 83 (1985)). 222 Edward L. Glaeser, Does Rent Control Reduce Segregation?, 10 Swedish Econ. Pol’y Rev. 179, 198 (2003). 292 Gutman, Moran-McCabe, & Burris ignored the “increasing professionalization of urban landlords . . . .” Understanding the power dynamics behind rent control could help gauge whether the rare occasions that seem to show benefts from rent control could be replicated.223
C. Domain 3: Afrmatively Furthering Fair Housing
1. Fair Housing Protections and the AFFH Rule Though ofcially outlawed, housing discrimination persists in the rental, sales, and lending markets (see the Predatory Lending section below for further discussion of discrimination in lending).224 The persistence of discrimination is reported both by ofcial HUD studies225 and by not-for-proft groups helping homeseekers with their complaints—tens of thousands every year. 226 The actual magnitude of discrimination based on race is probably understated in complaint statistics. A 2017 Robert Wood Johnson Foundation- Harvard survey reported that 45% of African Americans, 25% of Asian-Americans, and 31% of Hispanic Americans report having been discriminated against when seeking housing.227 Furthermore, there is reason to believe that many people of color are so discouraged by the persistence of segregation, and expect discrimination, that they do not seek housing in predominantly white areas at all. There is reason to believe that the problem is not the fair housing laws but rather, their enforcement. There are several ways enforcement is defcient. First, many or most victims may not come forward because they do not realize they have experienced discrimination, may not trust the remedy or wish to invest time and energy in litigation, or simply because their focus is on trying to fll their housing needs. Second, the system may not process claims
223 Desmond & Bell, supra note 103, at 17. 224 Jacob S. Rugh & Douglas S. Massey, Racial Segregation and the American Foreclosure Crisis, 75 Am. Soc. Rev. 629, 629 (2010); Nat’l Fair Hous. All., The Case for Fair Housing: 2017 Fair Housing Trends Report 76–82 (2017), https://nationalfairhousing.org/wp-content/ uploads/2017/04/TRENDS-REPORT-4-19-17-FINAL-2.pdf. 225 E.g., U.S. Dep’t of Hous. & Urban Dev., Office of Policy Dev. & Research, Housing Discrimination Against Racial and Ethnic Minorities 2012, at xi–xii (2013), https://www.huduser.gov/portal/ Publications/pdf/HUD-514_HDS2012.pdf. 226 Nat’l Fair Hous. All., supra note 224, at 77–78. 227 Discrimination in America, Robert Wood Johnson Found., https:// www.rwjf.org/en/library/research/2017/10/discrimination-in-america-- experiences-and-views.html (last visited Dec. 2, 2018). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 293 efciently, which could reduce the incentives for victims to complain and providers to abstain from discrimination.228 Only a small proportion of HUD complaints result in a charge of discrimination (2.5% of completed cases in 2016), about one-third are settled, and nearly half are dismissed or withdrawn.229 There is also a considerable backlog of incomplete cases.230 Third, the enforcement system may not use its investigatory mechanisms optimally. Fair housing law has been enforced in part by funding non-governmental fair housing organizations to assist people who sufer discrimination, investigate claims, and conduct proactive eforts like testing. The National Fair Housing Alliance (NFHA) reports on these activities, and supports organizations across the country to investigate potential discrimination in dozens of cities and states. For its part, the federal government brings a small but impactful number of pattern and practice cases each year. While these eforts successfully identify discriminatory activity, and produce positive legal outcomes, NFHA has also said that “this work receives neither the support nor respect it deserves.”231 The persistence of discrimination in housing markets is evidence that half a century after the enactment of the Fair Housing Act, the law did not achieve signifcant social norm changes, nor a signifcant deterrence efect to make landlords stop discriminating. Although the evidence raises concerns about the anti- discrimination project, 232 there is a dearth of literature evaluating the impact of fair housing law on racial residential segregation. There is almost no empirical evaluation of either federal or state fair housing laws’ efect on residential segregation, and the little evidence that does exist suggests that such laws may be insufcient as a tool of integration.233 There is some evaluation of city-level
228 Cary Coglianese & Evan Mendelson, Meta–Regulation and Self–Regulation, in The Oxford Handbook of Regulation 147–49 (Oxford Univ. Press ed. 2010) (ebook). 229 U.S. Dep’t of Hous. & Urban Dev., Office of Fair Hous. & Equal Opportunity, Annual Report to Congress FY 2016, at 21 (2017), https://www.hud.gov/sites/documents/FY2016FHEOANNUALREPORT. PDF. 230 Id. For a comparison, see Kathryn Moss et al., Unfunded Mandate: An Empirical Study of the Implementation of the Americans with Disabilities Act by the Equal Employment Opportunity Commission, 50 U. Kan. L. Rev. 1 (2001). 231 Nat’l Fair Hous. All., supra note 224, at 75. 232 Nancy A. Denton, Half Empty or Half Full: Segregation and Segregated Neighborhoods 30 Years After the Fair Housing Act, 4 Cityscape 107, 113 (1999). 233 Richard A. Smith, The Efects of Local Fair Housing Ordinances on Housing 294 Gutman, Moran-McCabe, & Burris initiatives, with mixed results. In case studies, eforts to increase black homeownership in New York City in the 1990s had some of the desired results,234 while St. Louis, Missouri showed no impact of city-level desegregation eforts.235 The Fair Housing Act not only prohibits discrimination in housing-related transactions, but it also imposes a duty on HUD and its program participants to afrmatively further fair housing.236 This duty applies to state and local governments that receive HUD funds.237 In the 1990s, HUD issued regulations and published a Fair Housing Planning Guide to clarify the AFFH mandate and provide guidance on how to comply. However, some recipients have not complied with their AFFH obligation, either to conduct a serious analysis of fair housing barriers, or to take concrete and meaningful steps to overcome identifed barriers.238 Despite signifcant litigation on this issue,239 noncompliance remained a signifcant problem in many jurisdictions. This noncompliance led the U.S. Government Accountability Ofce (GAO) to publish a report highlighting HUD’s general inefectiveness in enforcing the AFFH mandate.240 The GAO report prompted HUD to promulgate new regulations to clarify the AFFH process and standards for grantees. Published in 2015, the new rule requires grantees to submit an Assessment of Fair Housing (AFH) to HUD that identifes integration and segregation patterns, racially or ethnically concentrated areas of poverty, signifcant disparities in access to opportunity for any protected class, and disproportionate housing needs for any protected class.241 The AFH must include
Segregation: Their Impact is Small, but It’s an Important Positive Change Toward Integration, 48 Am. J. Econ. & Soc. 219, 219 (1989). 234 Lance Freeman, Black Homeownership: The Role of Temporal Changes and Residential Segregation at the End of the 20th Century, 86 Soc. Sci. Q. 403 (2005). 235 Dennis R. Judd, The Role of Governmental Policies in Promoting Residential Segregation in the St. Louis Metropolitan Area, 66 J. Negro Edu. 214, 214–15 (1997). 236 42 U.S.C. § 3608(e)(5) (2012). 237 24 C.F.R. § 5.154 (2018). 238 Smyth et al., supra note 112, at 238–39. 239 See, e.g., U.S. ex rel. Anti-Discrimination Ctr. of Metro N.Y., Inc. v. Westchester Cty., 668 F. Supp. 2d 548 (S.D.N.Y. 2009); see also Stipulation & Order of Settlement & Dismissal, U.S. ex rel. Anti-Discrimination Ctr. of Metro N.Y., Inc. v. Westchester County, 668 F. Supp. 2d 548 (S.D.N.Y. 2009) (No. 06 Civ. 2860), http://prrac.org/pdf/2009-08-10_order_settlement_signed.pdf. 240 Smyth et al., supra note 112, at 243–44. 241 24 C.F.R. § 5.154(d) (2018). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 295 goals to overcome fair housing issues, and the public must be given an opportunity to participate in the development of the AFH.242 Program participants are encouraged to collaborate and submit a single AFH for two or more jurisdictions.243 In May of 2018, HUD withdrew the Assessment Tool to be used by local governments in conducting their AFH, claiming that the tool is defcient.244 Because the Assessment Tool must be used to complete the AFH, HUD in efect has suspended the AFH submission requirement. As of the publication of this article, HUD is in the process of developing a proposed rule to amend the existing AFFH regulations. It is too soon to know what, if any, amendments will be made, or if there will be a substantial change in the quality of assessments under the new rule. Questions remain as to whether states, cities, and PHAs will identify real fair housing issues that need to be addressed, and if they will take concrete and meaningful steps to overcome barriers to integration. It also remains to be seen how strongly HUD will enforce the AFFH mandate going forward. To what extent will HUD review the AFHs? Will HUD withhold funds from jurisdictions that are not working to afrmatively further fair housing? In addition to the federal mandate, eight states have an AFFH requirement in their state fair housing law.245 However, the impact of the state requirement on segregation levels is unknown.
2. Inclusionary Zoning There is ample evidence that “density zoning is now the most important mechanism promoting class and racial segregation” in the U.S.246 Inclusionary zoning is a legal lever that could be used to reduce the exclusionary impact of density zoning. In considering the evidence of its impact, it is important to recognize that inclusionary zoning is a nuanced legal mechanism that can be tailored to the needs of a specifc community given the market pressures, housing resources, and the regulatory environment. The main elements of inclusionary zoning ordinances are the required share of afordable
242 24 C.F.R. §§ 5.154, 5.158 (2018). 243 24 C.F.R. § 5.156 (2018). 244 83 F.R. § 23922 (2018). 245 The Policy Surveillance Program, supra note 110. 246 Jonathan T. Rothwell & Douglas S. Massey, The Efect of Density Zoning on Racial Segregation in U.S. Urban Areas, 44 Urb. Aff. Rev. 779, 779–806 (2009); Jonathan T. Rothwell & Douglas S. Massey, Density Zoning and Class Segregation in U.S. Metropolitan Areas, 91 Soc. Sci. Q. 1123, 1140–41 (2010). 296 Gutman, Moran-McCabe, & Burris units in the development, target income level, duration of the afordability requirements, and exemptions and buyout options. Some inclusionary zoning ordinances are mandatory, while others are voluntary and use incentives such as additional density.247 Inclusionary zoning is still zoning: it functions as a form of exception to density or other requirements that operate to limit afordable housing. From an economic theory perspective, inclusionary zoning operates as a tax to raise the costs of housing construction. Developers must build some units below the market price, which results in afordable housing that is smaller or of lower quality, and market-rate housing that is more expensive than it otherwise would have been. The predicted result would, in theory, be fewer afordable units and higher prices than would have been attained by leaving matters to the invisible hand. The specifc efects—marginally higher prices for market rate houses and smaller afordable units— have been observed, but the size of the efect varies depending on location and study design, and often the overall efect on the market is small.248 The economic critique of inclusionary zoning is merely a variant of the argument against zoning itself. The more important question is whether inclusionary zoning provides the promised gains in social welfare: as many (or perhaps more) afordable units as the market or other mechanisms would supply, in locations that create racial and social integration. A recent review judiciously, but credibly, cuts the baby in half: inclusionary zoning can increase afordable housing production and integration, though there may be trade-ofs between these two goals.249 The real issue for research and practice is to better identify what particular elements of inclusionary zoning—i.e. which regulatory strategies—are most efective in producing both goals without signifcant adverse efects. Such
247 See Vinit Mukhija et al., Can Inclusionary Zoning Be An Efective And Efcient Housing Policy? Evidence from Los Angeles and Orange Counties, 32 J. Urb. Aff. 229, 234 (2010) (reporting heterogenity in efects of inclusionary zoning policies). 248 Vinit Mukhija et al., The Tradeofs of Inclusionary Zoning: What Do We Know and What Do We Need to Know?, 30 Plan. Prac. & Res. 222, 228–29, 230 (2015); Antonio Bento et al., Housing Market Efects of Inclusionary Zoning, 11 Cityscape, no. 2, 2009, at 10, 20–21. 249 Mukhija et al., supra note 247, at 226–30. Notably, the review reports that inclusionary zoning “programs produce as much afordable housing as the Low Income Housing Tax Credits (LIHTC) program.” Id. at 227. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 297 studies can also inform normative debates about any tradeofs that inclusionary zoning creates: if there are less overall housing units, but the share of afordable housing increases, do we defne that as a net positive or net negative from an equity lens with the goal of promoting a culture of health?250
3. Fair Share and Other State-Level Mandates While zoning is usually left to localities, some states have created inclusionary housing requirements. The requirements are based on income, not race, but given how closely associated race and income are, the requirements theoretically could work as a force against racial segregation as well as poverty concentration. Litigation in Mt. Laurel, New Jersey led to a still-unique legal lever, a requirement that all municipalities develop/accommodate their “fair share” of afordable housing.251 The three-decade process of defning, implementing and applying the requirement statewide has involved local governments, courts, and the state legislature. The results of the Mt. Laurel doctrine are “a proof of concept for the further development of afordable family housing, both as a social policy for promoting racial and class integration in metropolitan America and as a practical program for achieving poverty alleviation and economic mobility in society at large.”252 Outcomes for low- income individuals who acquired afordable housing through the Mt. Laurel litigation were better than those for similar people who remained in an area of concentrated poverty on numerous measures, including welfare use, employment, mental health, and income.253 That said, the doctrine has by no means substantially desegregated New Jersey, nor has the doctrine been adopted elsewhere. There is some evaluation of other states’ “fair share-ish” laws. For example, there is a small body of literature that argues that Chapter 40B played a role in increasing density, combating exclusionary zoning,254 and generating economic activity in
250 Vinit Mukhija et al., The Tradeofs of Inclusionary Zoning: What Do We Know and What Do We Need to Know?, 30 Plan. Prac. & Res. 222, 230, 233 (2015). 251 S. Burlington Cty. NAACP v. Township of Mount Laurel, 456 A.2d 390 (N.J. 1983). 252 Massey et al., supra note 8, at 190 (providing a detailed review of the evidence about the experience of Mt. Laurel, N.J.). 253 Id. at 148. 254 See, e.g., Lynn M. Fisher & Nicholas J. Marantz, Can State Law Combat Exclusionary Zoning? Evidence from Massachusetts, 52 Urb. Stud. 1071 (2014). 298 Gutman, Moran-McCabe, & Burris
Massachusetts.255 In California, New Jersey, and Massachusetts, LIHTC produces more afordable housing units per year than the statewide afordable housing programs.256
D. Domain 4: Enhancing Economic Choice for the Poor The economic analysis of afordable housing tends to put considerable emphasis on supply-side issues, such as zoning. Likewise, measures like LIHTC, inclusionary zoning, and housing code enforcement aim to primarily infuence developers and landlords. We think it is also important to take people with low incomes seriously as agents in the housing market, and therefore to consider how subsidy programs and other measures aimed at increasing the resources at their disposal could or do support the market agency of lower-income people.
1. Housing Choice Voucher Program Housing vouchers have been shown to reduce homelessness and housing instability.257 Children in homeless families that receive vouchers are 42% less likely to be placed into foster care.258 The MTO experiment showed long-term positive efects for voucher families moving into less poor neighborhoods.259 The HCV program can also beneft property owners. In 2016, owners received $17.5 billion in voucher payments, which can help to pay property taxes and maintain properties in good condition.260 Given the broad evidence of positive impact, the most obvious defect in the program is that it is chronically, and substantially, underfunded. Although the HCV program is the largest rental
255 Lindsay Koshgarian et al., U. Mass. Donahue Inst., Economic Contributions of Housing Permitted through Chapter 40B 6–7, 10 (2010), http://massbenchmarks.org/publications/studies/pdf/Economic_ Contributions_of_Housing.pdf. 256 Lance Freeman & Jenny Schuetz, Producing Afordable Housing in Rising Markets: What Works? 10 (Sept. 2016) (unpublished working paper), https://penniur.upenn.edu/uploads/media/FreemanSchuetz_PennIUR- Philly_Fed_working_paper_091616v2.pdf. 257 Matthew Desmond & Kristen L. Perkins, Are Landlords Overcharging Housing Voucher Holders?, 15 City & Community 137 (2016). 258 Ctr. on Budget & Policy Priorities, United States Housing Choice Vouchers Fact Sheet (2017), https://www.cbpp.org/sites/ default/fles/atoms/fles/3-10-14hous-factsheets_us.pdf. 259 See Ludwig et al., supra note 59; Chetty et al., supra note 61; Logan & Stults, supra note 62; Cutler & Glaeser, supra note 63. 260 Ctr. on Budget & Policy Priorities, supra note 258. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 299 assistance program in the U.S., with more than fve million people in 2.2 million low-income households using vouchers,261 the demand for vouchers substantially outweighs the supply: overall, only one in four households eligible to receive a voucher actually gets one.262 “According to a recent survey, 53% of HCV waiting lists were closed to new applicants, and the median list had a wait time of 1.5 years.”263 It is clear that the HCV program is an invaluable tool to help low-income renters aford housing. However, what is not clear in a broader context is whether or not the program leads to poverty deconcentration and racial integration. In other words, while it is clear that the program achieves the goal of helping voucher holders pay rent, it is unclear whether the program allows for mobility. One study that tackles this question head on fnds that, “to a large extent, the residents did not live in places that met their location preferences.”264 Other studies analyze HCV program data to estimate whether voucher holders move to low poverty neighborhoods or if they get stuck in voucher submarkets.265 The Center on Budget and Policy Priorities reports that of the more than 2.2 million households using vouchers, only 399,000 families (18%) use their vouchers to live in neighborhoods with a poverty rate below 20%.266 However, one study found that between 2007 and 2013, there was a notable decline in voucher use in high-poverty areas in Florida.267 Another article suggests that vouchers are working to reduce poverty concentration and racial segregation in Columbus, Ohio.268 Further, one analysis
261 Id. 262 Desmond & Bell, supra note 103, at 18. 263 Nat’l Low Income Hous. Coal., Out of Reach 2017: The High Cost of Housing 6 (2017), http://nlihc.org/sites/default/fles/oor/OOR_2017. pdf. 264 Ruoniu Wang, Tracking “Choice” in the Housing Choice Voucher Program: The Relationship Between Neighborhood Preference and Locational Outcome, 54 Urb. Aff. Rev. 302, 302 (2018). 265 Rebecca J. Walter et al., Moving to Opportunity? An Examination of Housing Choice Vouchers on Urban Poverty Deconcentration in South Florida, 30 Housing Stud. 1064 (2015); Stephanie DeLuca et al., Segregating Shelter: How Housing Policies Shape the Residential Locations of Low-Income Minority Families, 647 Annals Am. Acad. Pol. & Soc. Sci. 268 (2013). 266 Ctr. on Budget & Policy Priorities, supra note 258. 267 Ruoniu Wang & Rebecca J. Walter, Tracking Mobility in the Housing Choice Voucher Program: A Household Level Examination in Florida, USA, 33 Housing Stud. 455 (2017). 268 Barbra Teater, Residential Mobility of Section 8 Housing Choice Voucher Program Recipients: Assessing Changes in Poverty and Racial Composition in Neighborhoods, 12 J. Poverty 351, 353 (2008). 300 Gutman, Moran-McCabe, & Burris indicates that some black voucher holders are moving out of low- income, hyper-segregated areas into historically white communities, but that other voucher holders move in clustered patterns, which can lead to reconcentration of race and poverty.269 Given the mixed evidence, one conclusion that can be drawn is that even if there are mobility gains from the HCV program, these gains are not very large. One reason for this, which was documented through qualitative research, is that the voucher is geographically tied to a housing authority. Often, there is a jurisdictional boundary between the high poverty area in which the voucher holder currently lives and the low poverty area to which the holder wishes to move. While it is possible to move the voucher across jurisdictions, arranging the transfer requires “time-consuming steps” that are a barrier for many working poor.270 One region shows that another way to govern the voucher program is possible. Following the Thompson v. HUD271 desegregation case, the Baltimore Housing Mobility Program (BHMP) was founded. BHMP not only provides intensive housing counseling to voucher holders, but also makes it easier to use a voucher from Baltimore City in the more afuent neighborhoods of Baltimore County. The program shows promise and, compared to other voucher programs, BHMP voucher holders “moved to more integrated and afuent neighborhoods.”272 Another reason that we do not see more mobility gains from the HCV program is discrimination against voucher holders, known as source of income discrimination.273 Thirteen states plus the District of Columbia have laws prohibiting discrimination based on source of income, which often protects voucher holders.274 However, in three of those states, housing choice vouchers are excluded as a protected
269 Kelly L. Patterson & Eun-Hye Enki Yoo, Trapped in Poor Places? An Assessment of the Residential Spatial Patterns of Housing Choice Voucher Holders in 2004 and 2008, 38 J. Soc. Serv. Res. 637 (2012). 270 Stephanie DeLuca et al., Why Don’t Vouchers Do a Better Job of Deconcentrating Poverty? Insights from Fieldwork with Poor Families, Poverty & Race, Sept./Oct. 2012, at 1, 10–11. 271 Thompson v. U.S. Dep’t. of Hous. and Urban Dev., 348 F. Supp. 2d 398 (2005). 272 Stefanie DeLuca & Peter Rosenblatt, Walking Away From The Wire: Housing Mobility and Neighborhood Opportunity in Baltimore, 27 Housing Pol’y Debate 519, 519, 533 (2017). 273 Jessica Luna & Josh Leopold, Landlord Discrimination Restricts the Use of Rental Vouchers, Urb. Inst. (July 22, 2013), https://www.urban.org/urban-wire/ landlord-discrimination-restricts-use-rental-vouchers. 274 The Policy Surveillance Program, supra note 110. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 301 source of income.275 The fact that source of income protections are so rare is disheartening, given the potential efcacy of these laws.276 Studies show not only that source of income protections increase voucher utilization,277 but that they are associated with more voucher holders moving to areas with less poverty—even though the laws do not reduce voucher holder concentration.278 Other barriers to mobility include: (1) documented harassment of voucher holders from community members279; for example, aggressively reporting voucher holders to the housing authority or the police280; (2) lack of fnancial readiness supports281; and (3) poor housing search resources of the HCV program makes fnding units hard.282 Another unknown factor related to the HCV program is how it afects housing prices for voucher holders, and for urban rental markets generally. One recent analysis from Milwaukee found that voucher holders are charged between $51 and $68 more in monthly rent than tenants without vouchers in comparable units and neighborhoods.283 However, more research is needed to confrm that this result is not unique to Milwaukee. Overcharging should be of concern as it leads to fewer vouchers being in circulation. The structure of the HCV program, at least for many areas, theoretically enables overcharging. Voucher holders select a unit rented for an amount at or below Fair Market Rent (FMR), which is a rent ceiling set by HUD.284 FMRs are generally calculated at the metropolitan level (i.e. Philadelphia’s FMR for 2017 applies to the
275 Id. 276 J. Rosie Tighe et al., Source of Income Discrimination and Fair Housing Policy, 32 J. Plan. Literature 3, 8 (2017). 277 Lance Freeman, The Impact of Source of Income Laws on Voucher Utilization, 22 Housing Pol’y Debate 297, 297 (2012). 278 Lance Freeman & Yunjing Li, Do Source of Income Anti-discrimination Laws Facilitate Access to Less Disadvantaged Neighborhoods?, 29 Housing Stud. 88, 88, 101–02 (2014); Molly W. Metzger, The Reconcentration of Poverty: Patterns of Housing Voucher Use, 2000 to 2008, 24 Housing Pol’y Debate 544, 545–46 (2014). 279 Rahim Kurwa, Deconcentration without Integration: Examining the Social Outcomes of Housing Choice Voucher Movement in Los Angeles County, 14 City & Community 364, 364, 380 (2015). 280 Id. at 380–85, 387. 281 Laurie A. Walker, Resident Responses to Section 8 Relocation Outcomes: “If You’re Gonna Move, You Want to Move Up”, 11 J. Evidence-Based Soc. Work 97, 97, 99, 104, 107, 110 (2014); DeLuca et al., supra note 265, at 268, 289. 282 DeLuca et al., supra note 265, at 268, 280–81, 288–89. 283 Desmond & Perkins, supra note 257, at 137. 284 Id. at 139–40. 302 Gutman, Moran-McCabe, & Burris entire Philadelphia-Camden-Wilmington Metropolitan Statistical Area (MSA)).285 Due to the large and diverse areas for which FMRs are calculated, FMRs are generally higher than the market rents in high-poverty areas. Since these may be the areas in which voucher holders tend to live, landlords renting to voucher holders can charge them more than the market rate. This practice does not afect most voucher holders because they are generally only paying 30% of their income, and the PHA pays the remainder of the rent via the voucher.286 HUD recently issued a new rule and guidance stating that 24 metropolitan areas must use a small area FMR based on zip code, rather than the entire MSA.287 This rule should help alleviate the issue of landlords overcharging voucher holders. It is suggested that preventing overcharging could make the HCV program more cost- efective and expansive.288 The authors analyzing the Milwaukee study noted that overcharging “voucher holders costs taxpayers an estimated $3.8 million each year in Milwaukee alone, the equivalent of supplying 620 additional families in that city with housing assistance.”289 Another area in which there is a lack of meaningful research is the impact of housing vouchers on private rents, and the research that does exist is mixed. At least one study found that cities with more vouchers had steeper rent increases, but some studies have found no relationship between the concentration of voucher holders and the price of rental housing in general.290 The impact is unknown.291 While the HCV program is underfunded, it is the only major investment in the U.S. regarding rental support. While the literature debates whether or not the program allows for mobility,
285 FY 2018 Fair Market Rent Documentation System, U.S. Dep’t Housing & Urb. Dev., https://www.huduser.gov/portal/datasets/fmr/fmrs/FY2017_ code/2017summary.odn (last visited Dec. 7, 2018). 286 Desmond & Perkins, supra note 257, at 137. 287 Using Small Area Fair Market Rents in the Housing Choice Voucher Program Instead of the Current 50th Percentile FMRs, 81 Fed. Reg. 80,567, 80,568 (Nov. 16, 2016) (to be codifed at 24 C.F.R. pt. 888, 982, 983, 985); Office of Pub. & Indian Hous., U.S. Dep’t of Hous. & Urban Dev., Notice PIH 2018-01(HA), Guidance on Recent Changes in Fair Market Rent (FMR), Payment Standard, and Rent Reasonableness Requirements in the Housing Choice Voucher Program (2018). 288 Desmond & Perkins, supra note 257, at 137. 289 Id. at 138. 290 Id. at 141. 291 Desmond & Bell, supra note 103, at 18. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 303 no one seems to argue that the impact is signifcant on the extensive margin. The few instances of tinkering with the program, such as requiring small-area FMRs, pursuing regional collaboration such as Baltimore did, or enacting source of income protections, shows that changes can incrementally improve program outcomes. More inventive ideas need to be experimented with, as we continue to evaluate the innovative ideas that are currently in place, so that mobility gains may be maximized.
2. The Mortgage Interest Deduction Tax subsidies can add to the resources of home-seekers. In contrast to vouchers, the support for individual home ownership through the home MID has traditionally been available to virtually all comers. In 2015, the cost of the MID was $70 billion, more than double the combined cost of LIHTC and the HCV program.292 In 2016, the MID was the ffth largest tax break, at $77 billion.293 Despite its popularity, a policy favoring tax-payer subsidized home ownership over rental residency has contributed to poverty concentration and racial segregation, rather than to collective welfare.294 The majority of the MID goes to families with above average income. There are a few reasons for this phenomenon. First, wealthier families have larger mortgages, which translate to larger deductions. Second, the tax fler needs to itemize the deduction in order to claim it, something that the rich are more likely to do. Finally, homeowners are on average wealthier, and the MID does not help with paying a down payment, which is the biggest barrier to homeownership for the poor.295 There are studies to suggest that the MID does not achieve the goal of increasing homeownership.296 Furthermore, some studies
292 Carol Galante et al., The FAIR Tax Credit: A Proposal for a Federal Assistance in Rental Credit to Support Low-Income Renters 14 (2016). 293 Drew DeSilver, The Biggest U.S. Tax Breaks, Pew Res. Ctr. (Apr. 6, 2016), http://www.pewresearch.org/fact-tank/2016/04/06/the-biggest-u-s-tax- breaks/. 294 Brian J. McCabe, No Place Like Home: Wealth, Community, and the Politics of Homeownership 129–133 (2016). 295 Matthew Desmond, How Homeownership Became the Engine of American Inequality, N.Y. Times (May 9, 2017), https://www.nytimes.com/2017/05/09/ magazine/how-homeownership-became-the-engine-of-american-inequality. html. 296 Edward L. Glaeser & Jesse M. Shapiro, The Benefts of the Home Mortgage Interest Deduction, 17 Tax Pol’y & Econ. 37, 37 (2003). 304 Gutman, Moran-McCabe, & Burris suggest that eliminating the MID would “[cause] house prices to decline, [increase] homeownership, [decrease] mortgage debt, and [improve] welfare.”297 A policy change in Denmark allowed for a quasi-experiment on what would happen if the MID were to be decreased signifcantly. The results suggest that the MID has “zero efect on homeownership.”298 Harvard Economist Edward Glaeser called for the “killing (or maiming)” of the MID which he called “a sacred cow.”299 It certainly must be considered when discussing the need for more public investment in afordable housing, integration, and support for low-income renters.
3. The Earned Income (Housing) Tax Credit There is a solid empirical consensus that “the EITC has proved remarkably successful in reducing poverty.”300 There is also some evidence that it is a force for better health (for example, infant health).301 Survey research shows that the majority of EITC recipients use the money to pay debts.302 Some who can aford using
297 See generally Kamila Sommer & Paul Sullivan, Implications of US Tax Policy for House Prices, Rents, and Homeownership, 108 Am. Econ. Rev. 241, 241 (2018). 298 Jonathan Gruber et al., Do People Respond to the Mortage Interest Deduction? Quasi-Experimental Evidence from Denmark 19 (Nat. Bureau of Econ. Research, Working Paper 23600, 2017). 299 Edward L. Glaeser, Killing (or Maiming) a Sacred Cow: Home Mortgage Deductions, N.Y. Times: Economix (Feb. 24, 2009, 7:40 AM), https://economix.blogs. nytimes.com/2009/02/24/killing-or-maiming-a-sacred-cow-home-mortgage- deductions/. 300 Steven Holt, The Brookings Inst., The Earned Income Tax Credit at Age 30: What We Know 13–14 (2006). For a review of the literature, see Richard K. Caputo, TANF and EITC: A Literature Review, in U.S. Social Welfare Reform 81–103 (2011). 301 Sara Markowitz et al., Efects of State-Level Earned Income Tax Credit Laws in the U.S. on Maternal Health Behaviors and Infant Health Outcomes, 194 Soc. Sci. & Med. 67, 67, 68 (2017); Hillary W. Hoynes et al., Ctr. for Poverty Research, The EITC: Linking Income to Real Health Outcomes, https://poverty.ucdavis.edu/sites/main/fles/fle-attachments/policy_brief_ hoyes_eitc_1.pdf (last visited Jan. 4, 2019); Earned Income Tax Credits, Ctr. for Disease Control & Prevention, https://www.cdc.gov/policy/hst/ hi5/taxcredits/index.html (last updated June 22, 2017). 302 Timothy M. Smeeding et al., The EITC: Expectation, Knowledge, Use and Economic and Social Mobility, 53 Nat’l Tax J. 1187, 1193, 1202 (2000); see Timothy M Smeeding, Katherin Ross Phillips & Michael A O’Connor, The Earned Income Tax Credit: Expectation, Knowledge, Use, and Economic and Social Mobility, in Making Work Pay: The Earned Income Tax Credit and Its Impact on America’s Families 1193, 1202 (2001). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 305 the beneft for something other than paying debts use the EITC refund as a down payment for a house.303 For others, given that missing a monthly rent or mortgage payment can initiate eviction or foreclosure proceedings, using the EITC for housing can be tricky. The ability to use the lump sum beneft toward housing depends upon the benefciary’s ability to save money throughout the year, or upon a landlord’s agreement to take a lump sum to cover future months of rent.304 Indeed, a study looking directly to estimate the efect of state EITC expansion on housing stability and foreclosure/ eviction for single mothers found no signifcant relationship.305 While the EITC might not have a direct estimated efect on housing stability, it is plausible to believe that by covering other expenditures it helps families pay rent.306 Because the EITC is a cash transfer mechanism that economists view as less distorting of the market than rent ceilings or minimum wages, and because of the growing need to help poor households pay for housing, some argue that the EITC could be reformed to take housing into account.307 One of these proposals is the Federal Assistance In Rent (FAIR) Tax Credit. The FAIR credit is, in essence, using the tax code to create a universal housing voucher program. One way this proposal could work is by providing each family that earns less than 80% of the area median income the remainder between 30% of the household annual income and the small-area FMR.308
4. The Minimum Wage Inherent to the notion of housing afordability is how much people can pay. Parallel to the efort to reduce the cost burden of
303 See, e.g., Jennifer L. Romich & Thomas Weisner, How Families View and Use the EITC: Advanced Payment Versus Lump Sum Delivery, 53 Nat’l Tax J. 1245, 1259 (2000). 304 See id. at 1259–60. 305 Natasha Pilkauskas & Katherine Michemore, The Efect of Income on Housing Instability and Living Arrangements: Evidence from the Earned Income Tax Credit 2, 5, 24 (Poverty Sols. at the Univ. of Mich., Working Paper No. 1-17, 2018). 306 See Michael A. Stegman et al., The Brookings Inst. Ctr. on Urban & Metro. Policy, The Earned Income Tax Credit as an Instrument of Housing Policy 36 (2003). 307 See id. 308 Terner Ctr. for Hous. Innovation, The FAIR Tax Credit: A Proposal for a Federal Assistance in Rental Credit to Support Low-Income Renters (2016), http://ternercenter.berkeley.edu/uploads/ FAIR_Credit.pdf. 306 Gutman, Moran-McCabe, & Burris renters through decreasing the cost of housing should be an efort to increase disposable household income. One legal lever that was intended to achieve this goal is the minimum wage. However, the minimum wage sparked a heated debate within the discipline of economics about potential negative unintended consequences, mainly an unemployment efect. The disconnect between the minimum wage and housing costs is striking. In no state does the minimum wage allow a full-time worker to pay less than 30% of annual income on a two-bedroom, at fair market rent.309 Some cities are enacting living wages that are higher than the state minimum wage, with labor activists demanding at least $15 per hour, typically.310 There is some epidemiology to suggest that a higher minimum wage is related to better health. Studies show that a higher minimum wage is associated with a reduced likelihood of unmet medical needs,311 reduced heart disease,312 reduced adolescent births,313 reduced infant mortality,314 and no efect on the rate of the uninsured.315 We could not, however, fnd any peer-reviewed studies estimating the impact of an increase in the minimum wage on housing related outcomes—prices, rent, or afordability.316
309 See Nat’l Low Income Hous. Coal., Out of Reach: The High Cost of Housing (2017), http://nlihc.org/sites/default/fles/oor/OOR_2017. pdf. 310 Steven Greenhouse, How the $15 Minimum Wage Went from Laughable to Viable, N.Y. Times (Apr. 1, 2016), https://www.nytimes.com/2016/04/03/sunday- review/how-the-15-minimum-wage-went-from-laughable-to-viable.html. 311 Kelly P. McCarrier et al., Associations Between Minimum Wage Policy and Access to Health Care: Evidence from the Behavioral Risk Factor Surveillance System, 1996– 2007, 101 Am. J. Pub. Health 359, 366 (2011). 312 Miriam E. Van Dyke et al., State-Level Minimum Wage and Heart Disease Death Rates in the United States, 1980–2015: A Novel Application of Marginal Structural Modeling, 112 Prev. Med. 97 (2018). 313 Lindsey Rose Bullinger, The Efect of Minimum Wages on Adolescent Fertility: A Nationwide Analysis,107 Am. J. Pub. Health 447, 449–50 (2017). 314 Kelli A. Komro et al., The Efect of an Increased Minimum Wage on Infant Mortality and Birth Weight, 106 Am. J. Pub. Health 1514, 1514–15 (2016). 315 Kelly P. Mccarrier et al., Associations Between Minimum Wage Policy and Access to Health Care: A Multi-Level Analysis of the 2004 Behavioral Risk Factor Survey, 21 J. Health Care for the Poor & Underserved 729, 744 (2010). 316 An Economic Policy Institute report does make the connection between the minimum wage and housing. The author argues that increasing the minimum wage to $12 per hour would lead to a $17 billion annual savings for public assistance spending, “enough to double housing assistance benefts.” David Cooper, Econ. Policy Inst., Balancing Paychecks VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 307
5. Protecting Lower-Income People from Predatory Lending While redlining is talked about as an issue of the past, racial bias in lending and access to credit persists.317 An analysis of 31 million mortgage records in 61 metro areas in 2015 and 2016 found that black applicants were more likely to be denied a loan in 48 of the cities, and Hispanics were more likely to be denied in 25 cities.318 An analysis of mortgages from 2015 conducted by the Pew Research Center found that black and Hispanic borrowers pay higher mortgage rates than white borrowers.319 When there is a pattern or practice of discrimination involving mortgage loans or home improvement loans, DOJ may fle lawsuits under the Fair Housing Act and ECOA. In recent years, multiple banks entered settlements with DOJ to resolve allegations that they engaged in a pattern or practice of discrimination against African American and Hispanic borrowers in their mortgage lending. These settlements include amounts of $335 million (Countrywide Financial Corporation),320 $175 million (Wells Fargo),321 and $21 million (SunTrust Mortgage, Inc.), among others.322 In addition, the CFPB has enforcement authority related to ECOA violations. CFPB and DOJ have fled multiple joint actions alleging discriminatory mortgage lending practices, at least two of which have been settled in recent years.323 However, we are
and Public Assistance 24 (2016), https://www.epi.org/fles/2015/ balancing-paychecks-and-public-assistance.pdf. 317 Rothstein, supra note 109, at 109–13; see generally Jacob S. Rugh & Douglas S. Massey, Racial Segregation and the American Foreclosure Crisis, 75 Am. Soc. Rev. 629 (2010). 318 Aaron Glantz & Emmanuel Martinez, Keep Out: For People of Color, Banks Are Shutting the Door to Homeownership, Reveal News (Feb. 15, 2018), https:// www.revealnews.org/article/for-people-of-color-banks-are-shutting-the- door-to-homeownership/. 319 Drew DeSilver, Blacks and Hispanics Face Extra Challenges in Getting Home Loans, Pew Res. Ctr.: Fact Tank (Jan. 10, 2017), http://www.pewresearch.org/ fact-tank/2017/01/10/blacks-and-hispanics-face-extra-challenges-in-getting- home-loans/. 320 Consent Order at 2, 5, U.S. v. Countrywide Fin. Corp., No. 2:11-CV-10540- PSG-AJW (C.D. Cal. Dec. 28, 2011). 321 Consent Order at 1, 13, U.S. v. Wells Fargo Bank, N.A., No. 1:12-CV-01150- JDB (D.D.C. Sept. 21, 2012). 322 Consent Order at 10, U.S. v. Suntrust Mortgage, Inc., No. 3:12-CV-397 (E.D. Va. May 31, 2012). 323 See e.g., Consent Order, Consumer Fin. Prot. Bureau v. Hudson City Sav. Bank, F.S.B., No. 15-7056 (D.N.J. 2015); Consent Order, Consumer Fin. 308 Gutman, Moran-McCabe, & Burris left wondering if larger banks and lending institutions consider the payment of fnes and monetary settlements for discriminatory behavior to be just another cost of doing business. The lack of accessible credit for the poor brought rise to payday lending—small loans that are repaid in bulk. Twelve million people use payday loans every year, spending much more in interest than in credit.324 The large expenditure on interest often forces borrowers to forgo a large chunk of their paycheck to repay the loan and have to take another loan to meet other expenses325—for 1 in 10 borrowers, the frst loan is for a housing related expense. 326 Some argue that payday loans, while not ideal, are better than nothing. Without them, the poor would have no ability to borrow at all.327 House repairs, car repairs, and medical bills are all examples of unforeseen and often unbudgeted expenses. Most Americans do not have the savings to recover from these kinds of budgetary strains.328 It is for this type of consumption smoothing that loans exist. Internationally, there is ample evidence that small loans for low-income people help with this economic weathering and smooth shocks.329 Others argue that payday loans harm the poor, and it is the role of law to mitigate that damage.330 These types of laws that make payday loans less harmful cannot be viewed as out of scope when discussing the impacts of law on housing equity. A comprehensive systems view on housing afordability must take into consideration
Prot. Bureau v. Bancorp South Bank, No. 1:16cv118 (N.D. Miss. 2016). 324 Pew Charitable Trusts, Payday Lending in America: Policy Solutions (2013), http://www.pewtrusts. org/~/media/legacy/uploadedfiles/pcs_assets/2013/ pewpaydayoverviewandrecommendationspdf.pdf. 325 Id. 326 Pew Charitable Trusts, Payday Lending In America: Who Borrows, Where They Borrow, and Why 14 (2012), http:// www.pewtrusts.org/~/media/legacy/uploadedfles/pcs_assets/2012/ pewpaydaylendingreportpdf.pdf. 327 Lisa Servon, Are Payday Loans Harmful To Consumers?, 36 J. Pol’y Analysis & Mgmt. 240 (2016). 328 Pew Charitable Trusts, How Do Families Cope with Financial Shocks? 2–3 (2015), http://www.pewtrusts.org/~/media/assets/2015/10/ emergency-savings-report-1_artfnal.pdf. 329 E.g., Paul Gertler et al., Do Microfnance Programs Help Families Insure Consumption Against Illness?, 18 Health Econ. 257, 269 (2009); Asadul Islam & Pushkar Maitra, Health Shocks and Consumption Smoothing in Rural Households: Does Microcredit Have a Role to Play?, 97 J. Dev. Econ. 232 (2012). 330 E.g., Alex Horowitz, Payday Loans Harm Consumers, but Reform is Possible, 36 J. Pol’y Analysis Mgmt. 248 (2016). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 309 not only the impact of access to credit, but also the fnancial product that the credit allows access to.
E. Domain 5: Governance and Planning The governance of housing markets is complex in itself, and the connection of housing as a basic need to other basic needs such as transportation, education, work, and recreation adds many more layers. Public housing is developed and managed by local public housing authorities, which often do not overlap geographically with other governing bodies. While there are 3,007 counties in the U.S.,331 there are close to 3,400 public housing authorities.332 Other actors, such as land banks and cooperatives, may work with housing authorities, developers, and planners. The AFFH rule was intended to incentivize regional collaboration by allowing multiple jurisdictions to submit an AFH together.333 However, it is unknown to what extent this collaboration will occur, or whether any such collaboration will succeed past the AFH submission to HUD. Some of the legal levers identifed in this article are examples of eforts to adopt a regional approach in the housing context. For example, by creating an obligation for municipalities to have a fair share of the region’s afordable housing, the Mt. Laurel doctrine brought light to the idea that a regional planning approach could be used to reduce exclusionary zoning practices.334 In Hills v. Gautreaux, the U.S. Supreme Court upheld the Seventh Circuit’s order that a comprehensive metropolitan area plan be adopted to desegregate the public housing system in Chicago.335 As a result of that case, the frst major housing mobility program in the U.S. was launched in the Chicago metropolitan area.336 That program infuenced other housing mobility eforts, including the Baltimore Housing Mobility
331 How many counties are there in the United States?, U.S. Geological Surv., https://www.usgs.gov/faqs/how-many-counties-are-there-united-states. 332 U.S. Dep’t of Hous. & Urban Dev., U.S. Housing Market Conditions Summary (1995), https://www.huduser.gov/periodicals/ushmc/spring95/ spring95.html. 333 24 C.F.R. § 5.156. 334 S. Burlingon Cty. NAACP v. Mt. Laurel, 336 A.2d 713 (N.J. 1975); S. Burlingon Cty. NAACP v. Mt. Laurel, 456 A.2d 390 (N.J. 1983). 335 Hills v. Gautreaux, 425 U.S. 284 (1976). 336 The Supreme Court and the Gautreaux Assisted Housing Program, Bus. & Prof’l People for the Pub. Interest: BPI Blog (May 15, 2015), https://www. bpichicago.org/blog/the-supreme-court-and-the-gautreaux-assisted-housing- program/. 310 Gutman, Moran-McCabe, & Burris
Program, which arose from Thompson v. HUD,337 a case similar to Gautreaux.338 These types of mobility programs make it easier for someone to use a housing voucher in the larger metropolitan region, rather than only within the city limits, thus providing opportunity to live in better neighborhoods. In the U.S., the challenge of integrating action on housing, economic development, transportation, education, population growth, and urban design across city, county, and school district lines is vested, if anywhere, in regional planning entities with varying degrees of legal authority. Most states have laws that enable regional activity.339 California law provides for the creation of regional planning districts, which prepare regional plans that seek to harmonize the general plans of cities and counties within the region. These districts are authorized to ofer facilities and services to help solve problems related to physical development that involve two or more governing bodies, planning commissions, or agencies.340 In Pennsylvania, the governing bodies of two or more municipalities may establish regional planning commissions to provide planning services to any municipality in the region.341 The federal government can play a role in helping to build regional collaborations and regional planning eforts.342 In addition to the AFFH rule, HUD has used funds to incentivize collaboration. For example, in its Sustainable Communities Initiative, HUD awarded
337 Thompson v. U.S. Dep’t. of Hous. and Urban Dev., 348 F. Supp. 2d 398 (2005). 338 Lora Engdahl, New Homes, New Neighborhoods, New Schools: A Progress Report on the Baltimore Housing Mobility Program 11 (2009), http://www.prrac.org/pdf/BaltimoreMobilityReport. pdf. 339 Ohm, supra note 134, at 41; David N. Bengston et al., Public Policies for Managing Urban Growth and Protecting Open Space: Policy Instruments and Lessons Learned in the United States, 69 Landscape & Urb. Plan. 271, 272–73 (2004). Of course, states have potentially many laws that are relevant to local planning, if not helpful. See, e.g., David L. Prytherch, Where a Subdivision is not a “Subdivision”: State Enabling Statutes and the Local Regulation (or not) of Land Division in the United States, 37 J. Plan. Educ. & Res. 286 (2017) (mapping state laws on land division that may allow developments that would be diferently governed under state law). 340 Cal. Gov’t Code § 65065.1 (West 2018). 341 53 Pa. Stat. Ann. §§ 2341, 2344(a), 2345(b) (2018). 342 Lavea Brachman, New State and Federal Policy Agendas: Realizing the Potential of America’s Legacy Cities and Their Regions, in Rebuilding America’s Legacy Cities: New Directions for the Industrial Heartland 276–77 (Alan Mallach ed., 2012). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 311
Regional Planning Grants and Community Challenge Planning Grants through a competitive process. These grants “supported regional and local planning eforts that helped communities integrate housing, transportation, infrastructure, and environmental goals . . . .”343 There is a long and diverse history of research on urban planning and development, which is beyond the scope of this article to describe. We were unable to locate studies focusing particularly on the efcacy of planning mechanisms on afordable housing as such.
V. Conclusion Assuring safe and healthy housing to Americans has emerged as an urgent, but wicked problem. The nation has thrown a great deal of law at housing, discrimination, and poor neighborhoods for a generation, with unsatisfying results. We have proposed an approach to the problem rooted in legal epidemiology.344 We have argued that attaining this goal requires a systems approach, and have ofered a heuristic model of legal levers that have the potential to promote this goal. Our goal, and our evocation of a systematic approach, can easily be dismissed as inconsistent with current political reality— but that objection misses the point. There is clearly a need to rebuild public faith in collective problem solving and government action— indeed, in the necessity and practicality of rational planning itself. This process is long-term. A good place to start is with correctness about our prescriptions and deftness with our tools. This is where the overview of evidence in Part IV came in. We looked at a range of legal levers that are often in intense use, and found that the deftness was, in most cases, missing. Some levers, like the implied warranty of habitability, may never have been widely implemented. There are some working levers, like housing code enforcement to preserve afordable units,
343 Regional Planning Grants and the SCI, HUD Exchange, https://www. hudexchange.info/programs/sci/ (last visited May 30, 2018). 344 Legal epidemiology is the growing discipline that is defned “as the scientifc study and deployment of law as a factor in the cause, distribution, and prevention of disease and injury in a population.” A methodology that is central to legal epidemiology is “policy surveillance, the ongoing, systematic collection, analysis, and dissemination of information about laws and other policies of importance to health.” Scott Burris et al., A Transdisciplinary Approach to Public Health Law: The Emerging Practice of Legal Epidemiology, 37 Ann. Rev. Pub. Health 135, 139 (2016). 312 Gutman, Moran-McCabe, & Burris which may not be working well, sufering from under-investment in enforcement and regulatory innovation. Others, such as housing vouchers, may be working well, but fail perennially to scale. Finally, there are levers, like LIHTC, that succeed splendidly on their own terms, but may not be properly designed or managed to promote other important system goals, highlighting that even more important than the questions about individual levers is the unexplored question of how the levers interact in the system, or could. Governing the many elements of the system so that housing is built in the right places and at the right prices to support healthy and economically vibrant communities is a challenge this country continues to struggle with. Few clearly successful models exist. Policy debates under these circumstances can easily miss the point. The empirical objection to many of the devices is that they interfere with the market. This point is likely true, but if one allows it to be permissible as a mechanism for advancing social welfare—let alone if one believes that regulating markets is essential for social welfare—the important empirical questions have to do with harmonizing the benefts of market mechanisms with those of regulation. This inquiry, in turn, will tend to turn on questions both of optimal investment—are we spending enough to get the optimal benefts (a question, say, with LIHTC or vouchers)—or whether we are using the right mix of specifc regulatory levers, the sort of question that arises with inclusionary zoning and housing code enforcement. Lack of legal nuance is also a problem in assessing existing options. Many of the legal levers are complicated (housing codes, for example), and can vary from jurisdiction to jurisdiction. We do not know enough about what regulatory approaches or mechanisms work best for, say, inclusionary zoning. That question, rather than whether inclusionary zoning “works,” is the key question now. Likewise, it is stimulating, but not illuminating, to contend over whether housing code enforcement is pro- or anti-tenant. The important challenge is to more assiduously investigate what approaches to enforcement best serve landlords, tenants, and the public under various housing market conditions. The set of questions raised by reviewing gaps in existing knowledge is a blue-print for strategic thinking and immediate action to develop and test better ways to use and combine legal levers. Two generic practices are, we think, clearly indicated by the current state of play. First, innovation, advocacy, implementation, VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 313 and evaluation should be planned together as much as possible.345 If a city or (ideally) a collaborative group of cities undertake to develop new approaches to the content and enforcement of their housing codes (for example), foundations or other funders with an interest in better enforcement (or even the cities themselves) can support the infrastructure and processes needed to develop a plausible approach, overcome opposition to its enactment, and properly implement it. Evaluation should start at implementation, so as to determine what works and what needs to be refned as quickly as possible. Results can feed back into advocacy for scaling up what works. None of this brings change overnight, but if the time to create, identify, and difuse better legal models can be cut from two decades to one, the savings can be measured in human thriving and prevented harm. The need for this sort of strategic discipline is evident in housing, where large scale legal interventions have gone decades without the evaluation work that would show remediable weaknesses or clear failures. Law that does not work is more than useless; it creates harm by suggesting that problems have been solved. Strategy is only in part a function of thought; it depends to a considerable degree on resources and leadership from committed organizations and individuals. Those resources exist. Second, research must do more to identify the efects of specifc variant features in general legal models, while also building toward rigorous study of the interactions of policies and policy elements within a system. This matter is one of nuance and of the development of knowledge over time. On the one hand, no one is exposed to, say, an “inclusionary zoning policy.” Rather, in each jurisdiction, there is a form of the approach with more particular characteristics—mandatory versus voluntary, density-bonuses or not, etc.—that will infuence the program’s outcomes. On the other hand, no one is exposed to just one housing policy at a time. Inclusionary zoning, LIHTC, and regional plans may all interact to produce results that difer across jurisdictions. Tools and methods for this kind of empirical legal research are available and becoming better with the advent of machine-assisted research.346 Wicked problems are not insoluble, any more than well-
345 Cf. Scott Burris et al., Better Health Faster: The 5 Essential Public Health Law Services, 131 Pub. Health Rep. 747 (2016) (describing essential elements of public health law intervention). 346 See Scott Burris et al., Policy Surveillance: A Vital Public Health Practice Comes of Age, 41 J. Health Pol., Pol’y & L. 1151 (2016). 314 Gutman, Moran-McCabe, & Burris funded and systematic eforts to weaken government and prevent collective problem solving are unstoppable. Carefully borrowing from Socrates, we can improve sustained, strategic eforts to promote health equity in housing by owning our own ignorance about the legal levers at hand. From that, we can also perhaps extract enough hope to abstain from drinking the hemlock. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 315
Structural Determinism Amplifying the Opioid Crisis: It’s the Healthcare, Stupid!*
Nicolas P. Terry**
* This article draws from research funded by the Indiana University Grand Challenge Initiative, “Responding to the Addictions Crisis” and specifcally, the report Legal and Policy Best Practices in Response to the Substance Abuse Crisis, co-authored with Aila Hoss and Ross Silverman, https:// grandchallenges.iu.edu/doc/iu-grand-challenges-legal-and-policy-best- practices.pdf. I express my thanks to Valerie Blake, Tracy Gunter, Aila Hoss, and Seema Mohapatra for their thoughtful comments on an earlier draft and to Emily Beukema for her research assistance. ** Hall Render Professor of Law, Executive Director, Hall Center for Law and Health, Indiana University Robert H. McKinney School of Law. Email: [email protected], Twitter @nicolasterry. 316 Terry
Table of Contents I. Introduction ...... 317 II. Inconvenient Truths ...... 319 III. Structural Determinants and Overlapping Frames ...... 323 IV. Healthcare Structural Determinants Versus Opioid Responses ...... 329 A. The Standard of Care ...... 331 B. Stratification and Benefit Indeterminacy ...... 333 1. Diferentially-Treated Cohorts ...... 334 2. Acute Stratification on the Exchanges...... 338 C. Medicaid’s Devolution from Solution to Potential Problem ...... 343 1. Regressive Trends in Section 1115 Waivers ...... 345 2. Medicaid Reimbursement for Behavioral Health Services ...... 352 D. Diferential Architectures, Fragmentation, and a Paucity of Wraparound Services ...... 356 1. Fragmentation and the Continuum of Care for Those with OUD ...... 357 2. Non-Aligned Data Protection Models ...... 360 V. The Healthcare Wasteland: Jails and Prisons ...... 365 A. The State of Jails and Prisons ...... 366 B. Reentry and Avoiding Recidivism ...... 369 VI. Conclusion...... 370 VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 317
He went to work when he’d spent his last dime And Sammy took to stealing When he got that empty feeling For a hundred dollar habit without overtime. And the gold rolled through his veins Like a thousand railroad trains, And eased his mind in the hours that he chose, While the kids ran around wearin’ other peoples’ clothe . . . There’s a hole in daddy’s arm where all the money goes . . .1
I. Introduction Why are more than two and a half million Americans sufering from substance use disorder (“SUD”)?2 Why did more than half a million die from drug overdose from 1999–20153 and an estimated 72,000 in 2017 alone?4 Why do so few (maybe only 20%) of those sufering from opioids use disorder (“OUD”) receive treatment?5 Why do so many re-entering from prisons relapse and continue their cycles of despair?6 Should we be tackling a behavioral health services problem, a substance use epidemic, an opioid epidemic or an opioid overdose epidemic, or all of the above? Sometimes, explanations to hard problems are found hiding in plain sight. Recently, the academy lost Uwe Reinhardt, one of the fnest health policy scholars of his generation.7 Reinhardt, an
1 John Prine, Sam Stone, on John Prine (Atlantic Records 1971). 2 Substance Abuse & Mental Health Serv. Admin. Ctr. for Behavioral Health Statistics & Quality, Results from the 2016 National Survey on Drug Use And Health: Detailed Tables 1220, tbl.5.1A (2017), https://www.samhsa.gov/data/sites/default/fles/NSDUH- DetTabs-2016/NSDUH-DetTabs-2016.pdf. 3 Puja Seth et al., Overdose Deaths Involving Opioids, Cocaine, and Psychostimulants — United States, 2015–2016, 67 Morbidity & Mortality Wkly. Rep. 349, 349 (2018). 4 Farida B. Ahmad et al., Provisional Drug Overdose Death Counts, Nat’l Ctr. for Health Statistics (Nov. 14, 2018), https://www.cdc.gov/nchs/nvss/vsrr/ drug-overdose-data.htm. 5 See Olga Khazan, Why 80 Percent of Addicts Can’t Get Treatment, The Atlantic (Oct. 13, 2015), https://www.theatlantic.com/health/archive/2015/10/why- 80-percent-of-addicts-cant-get-treatment/410269/. 6 Ingrid A. Binswanger et al., Return to Drug Use and Overdose After Release from Prison: A Qualitative Study of Risk and Protective Factors, Addiction Sci. & Clinical Prac., Mar. 15, 2012, at 3, https://ascpjournal.biomedcentral. com/track/pdf/10.1186/1940-0640-7-3. 7 Sam Roberts, Uwe Reinhardt, 80, Dies; a Listened-to Voice on Health Care Policy, 318 Terry economist, wrote extensively about healthcare costs and in one article famously concluded, “It’s the prices, stupid!”8 As we examine the opioid crisis (and other diseases of despair), we should recognize that here, also, there are some causes or accelerants hiding in plain sight. Indeed, enough relate to healthcare access, fnancing, and delivery that we should conclude, “It’s the Healthcare, Stupid!” In concentrating on the healthcare system, this article is not seeking to oversimplify what is manifestly a wicked problem with multiple, interlocking causes.9 Specifcally, nothing written here should be misunderstood as minimizing the urgent need for evidence-based harm-reducing public health interventions or denying the fundamental role of social determinants of health upon which addictions attach like parasites. Neither is this concentration on healthcare simply a restatement of the evidence-based medicalization- not-criminalization approach to the opioid crisis. Rather, the article invites critical examination of our healthcare “system” seen through an addictions frame; the way in which it supplies context and the role it plays—or in many ways, fails to play—in crises generally and specifcally in the case of the opioid epidemic. The article paints a picture of a healthcare system that not only has been slow to deliver appropriate treatments but also stands as a structural determinant of this crisis. Structural determinants create barriers that stop or slow the remediation of social determinants while perpetuating others. This paper argues that the healthcare system has failed those struggling with OUD and co-morbidities and is itself a structural determinant that creates barriers to efective behavioral health services. In some ways (such as poor preventative care and over- prescribing) the healthcare system justifably can be viewed as a cause of the opioid epidemic. However, its true failing is the way it has amplifed the crisis; seemingly unable or unwilling to identify appropriate points of intervention or deliver the necessary services. The root causes of the opioid epidemic must be treated with improved education, better surveillance, and generally addressing
N.Y. Times (Nov. 15, 2017), https://www.nytimes.com/2017/11/15/ obituaries/uwe-reinhardt-a-listened-to-voice-on-health-care-policy-dies- at-80.html. 8 Gerard F. Anderson et al., It’s the Prices, Stupid: Why the United States is So Diferent From Other Countries, 22 Health Affairs 89, 103 (2003). 9 See generally Jonathan C. Lee, The Opioid Crisis is a Wicked Problem, 27 Am. J. on Addictions 51, 51 (2017). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 319 the social determinants of health. However, the U.S. healthcare system is responsible for many of the symptoms of the opioid crisis and several of the barriers to efective solutions. The article proceeds as follows. Section II provides context for the current opioid crisis, identifying morphing drug sources to shifting at-risk populations. Section III discusses social and structural determinants of health, arguing that the healthcare system is one of the latter. Section IV is a deeper dive into some of healthcare’s faws relevant to this analysis, critically examining access and beneft stratifcation, the changing role of Medicaid, and problems associated with fragmentation of care and the lack of wraparound services. Section V provides a brief overview of the extreme healthcare-related structural determinants present in our jails and prisons.
II. Inconvenient Truths The public health (harm reduction) and medical (treatment) frames for understanding disorders or addictions are widely held.10 However, many policymakers still cling to a “moral defect” framing.11 Furthermore, although recognized by some as inefective or worse,12 many still believe in continuing or reviving the supply- side criminalization seen in the “war on drugs.” The opioid epidemic also pushes some powerful psychological buttons; some of its causes (drug over-prescription by physicians and misleading promotion
10 Scott Burris, Where Next for Opioids and the Law? Despair, Harm Reduction, Lawsuits, and Regulatory Reform, 133 Pub. Health Rep. 29, 29–33 (2017); Nabarun Dasgupta et al., Opioid Crisis: No Easy Fix to Its Social and Economic Determinants, 108 Am. J. of Pub. Health 182 (2018). 11 Nicole L. Henderson & William W. Dressler, Medical Disease or Moral Defect? Stigma Attribution and Cultural Models of Addiction Causality in a University Population, 41 Culture, Med., & Psychiatry 480, 492 (2017). 12 See, e.g., Mona Chalabi, The ‘War on Drugs’ in Numbers: A Systematic Failure of Policy, The Guardian (Apr. 19, 2016), https://www.theguardian.com/ world/2016/apr/19/war-on-drugs-statistics-systematic-policy-failure-united- nations; Christopher J. Coyne & Abigail R. Hall, CATO Institute, Four Decades and Counting: The Continued Failure of the War on Drugs (2017), https://object.cato.org/sites/cato.org/fles/pubs/ pdf/pa-811-updated.pdf; Altaf Rahamatulla, The War on Drugs has failed. What’s next?, Ford Found. (Mar. 23, 2017), https://www.fordfoundation.org/ ideas/equals-change-blog/posts/the-war-on-drugs-has-failed-what-s-next/; George P. Shultz & Pedro Aspe, The Failed War on Drugs, N.Y. Times (Dec. 31, 2017), https://www.nytimes.com/2017/12/31/opinion/failed-war-on-drugs. html. 320 Terry by pharmaceutical manufacturers) are identifably blameworthy,13 sometimes leading to bad actors being shamed in front of Congressional committees.14 And, at root there are, according to the “moral defect” frame, junkies and their drug lords or kingpins, although this crisis’ kingpins are quite diferent from those seen before.15 As befts a “‘wicked’ problem,”16 reality is somewhat more complicated. An evolving view of the opioid use crisis is that there exists not just one crisis, but two. Shanoor Seervai and colleagues label the frst as a “prescription-drug epidemic,” typically impacting older rural whites, but identify the second “emerging epidemic” as impacting non-medical users (increasingly urban communities of color) of heroin and fentanyl.17 The line drawn connecting these two epidemics is controversial. The so-called “vector model” assigns causality to drug users and suppliers—overprescribing leads to opioid abuse and overdoses caused by whichever opiate is easiest to acquire.18 Of course, the two crises (prescription and street drugs) are intertwined19 and it is not hard to conjure up a mental diagram illustrating how changes in supply and prices of (frequently diverted) prescription
13 Barry Meier, 3 Executives Spared Prison in OxyContin Case, N.Y. Times (July 21, 2017), https://www.nytimes.com/2007/07/21/business/21pharma.html. 14 See Katie Zezima & Scott Higham, Drug Executives to Testify Before Congress About Their Role in U.S. Opioid Crisis, Wash. Post (Apr. 12, 2018), https://www. washingtonpost.com/national/drug-executives-to-testify-before-congress- about-their-role-in-us-opioid-crisis/2018/04/12/89e7ccf2-3db6-11e8-974f- aacd97698cef_story.html?. 15 Esmé E. Deprez et al., Deadly Chinese Fentanyl Is Creating a New Era of Drug Kingpins, Bloomberg (May 22, 2018), https://www.bloomberg.com/news/ features/2018-05-22/deadly-chinese-fentanyl-is-creating-a-new-era-of-drug- kingpins. 16 See generally Horst W. J. Rittel & Melvin M. Webber, Dilemmas in a General Theory of Planning, 4 Pol’y Sci. 155 (1973). 17 Shanoor Seervai et al., The U.S. Has Two Opioid Epidemics: The Federal Response Should Consider Both, The Commonwealth Fund: To the Point (Mar. 22, 2018), http://www.commonwealthfund.org/publications/blog/2018/mar/ federal-response-to-opioids. 18 See Dasgupta et al., supra note 10, at 183. 19 “And so it went. Oxycontin frst, introduced by reps from Purdue Pharma over steak and dessert and in air-conditioned doctors’ ofces. Within a few years, black tar heroin followed in tiny uninfated balloons held in the mouths of sugarcane farm boys from Xalisco driving old Nissan Sentras to meet-ups in McDonald’s parking lots.” Sam Quinones, Dreamland: The True Tale of America’s Opiate Epidemic 269 (2016). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 321 drugs lead to increases in the demand for street drugs. However, the vector model for comprehending and reacting to the opioid crises cannot stand.20 More closely examined, these two increasingly diverging crises exhibit other and more complicated similarities and diferences. White middle-class persons with OUD are more likely to have private insurance, unlike the rural and urban poor, who are more likely to rely on Medicaid. Persons of color are more likely to have been the subject of law enforcement and face additional problems associated with societal re-entry from corrections. Finally, and true to its internal (albeit fawed) logic, the vector model emphasizes supply-side interventions such as limitations on prescribing,21 opioid reimbursement reforms,22 and the expansion of Prescription Drug Monitoring Programs (“PDMPs”).23 Some of these reforms may impact the prescription drug epidemic.24 However, they are likely to be of limited help regarding the second epidemic and, obviously, do nothing to address underlying social determinants of health. A further inconvenience is that the nature of the problem we face is hard to defne or, even when defned, is muddied by inconsistent labelling. According to The Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”) “[t]he essential feature of a substance use disorder is a cluster of cognitive, behavioral, and physiological symptoms indicating that the individual continues using the substance despite signifcant substance-related problems.”25 Opioids are included in the list of substances. The core diagnostic criterion for OUD is “[a] problematic pattern of opioid use leading
20 See Dasgupta et al., supra note 10 (rejecting “prescribing as the causative vector” and arguing that economic and social upheaval are the primary causes). 21 Deborah Dowell et al., CDC Guideline for Prescribing Opioids for Chronic Pain — United States, 2016, 65 Morbidity & Mortality Wkly. Rep. 1 (2018), https://www.cdc.gov/mmwr/volumes/65/rr/pdfs/rr6501e1.pdf. 22 See Dasgupta et al., supra note 10; see also 2019 Medicare Advantage and Part D Advance Notice Part II and Draft Call Letter, Ctrs. for Medicare & Medicaid Servs. (Feb. 1, 2018), https://www.cms.gov/newsroom/fact-sheets/2019- medicare-advantage-and-part-d-advance-notice-part-ii-and-draft-call-letter. 23 See generally Rebecca L. Hafajee et al., Mandatory Use of Prescription Drug Monitoring Programs, 313 JAMA 891 (2015). 24 See generally Kelly K. Dineen, Addressing Prescription Opioid Abuse Concerns in Context: Synchronizing Policy Solutions to Multiple Complex Public Health Problems, 40 Law & Psychol. Rev. 1 (2016). 25 American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 483 (5th ed. 2013). 322 Terry to clinically signifcant impairment or distress.”26 Diagnosis of OUD and its severity depends upon the presence of certain criteria, for example “[r]ecurrent opioid use in situations in which it is physically hazardous” or “[c]ontinued opioid use despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by substance.”27 Notwithstanding the discrete diagnosis of OUD, government agencies such as the Substance Abuse and Mental Health Services Administration (“SAMHSA”) or the Centers for Medicare & Medicaid Services (“CMS”) tend not to break out OUD from SUD, tending to refer more to the latter, although clearly accepting there is an opioid epidemic.28 When it comes to treatment, the broader phrase “behavioral health services” often is employed referring to both mental health and substance use disorder services.29 The Afordable Care Act (“ACA”) uses the phrase “[m]ental health and substance use disorder services, including behavioral health treatment” to defne one of its “essential health benefts.” 30 The linkage to mental health is not accidental. As noted in DSM-5, “[a]n important characteristic of substance use disorders is an underlying change in brain circuits that may persist beyond detoxifcation, particularly in individuals with severe disorders.”31 Finally, some refer to the current epidemic as an opioid overdose crisis,32 a term that is both accurate and perhaps telling in that overdoses, particularly overdose deaths, have elevated this crisis in both public and political consciousnesses.33 In this article SUD will be used when describing a broader addiction epidemic or when that language is used by agencies.
26 Id. at 541. 27 Id. In total DSM lists 11 such diagnostic/severity criteria. 28 See Medicaid Innovation Accelerator Program, infra note 211. 29 See, e.g., Behavioral Health Services, Medicaid.gov, https://www.medicaid. gov/medicaid/benefts/bhs/index.html (last visited Dec. 9, 2018); see also Behavioral Health Treatments and Services, Substance Abuse & Mental Health Serv. Admin. (Sept. 20, 2017), https://www.samhsa.gov/ treatment. 30 Patient Protection and Afordable Care Act, 42 U.S.C. § 18022(b)(1)(E) (2018). 31 Am. Psychiatric Ass’n, supra note 25, at 483. 32 See, e.g., Opioid Overdose Crisis, Nat’l Inst. on Drug Abuse, https://www. drugabuse.gov/drugs-abuse/opioids/opioid-overdose-crisis (last updated Mar. 2018). 33 See German Lopez, The Opioid Epidemic: Explained, Vox (Dec. 21, 2017), https://www.vox.com/science-and-health/2017/8/3/16079772/opioid- epidemic-drug-overdoses. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 323
However, the article is concerned primarily with OUD, particularly at the severe end of the scale involving opioid intoxication, withdrawal, or overdose.34 Those defnitional issues lead into another inconvenient truth: that our current opioid epidemic is not unique. It is an addiction crisis but is neither the only one we have faced nor likely the last one we will face. Herzberg and colleagues have explained how, at root, the opioid epidemic is part of an addiction problem that stretches back over a century, with each crisis, (methamphetamine in the 1980s, crack cocaine in the early 1990s, and so on) tending to recycle “supply-side and criminal-justice approaches” rather than “an expanded public health response.”35 Until we solve the broader addiction problem, we will be treating somewhat varying symptoms, not root causes. These root causes do require public health responses such as improved education, better surveillance, and tackling social determinants of health. However, many of the adverse symptoms of the crisis (its co-morbidities if you like), and barriers to efective solutions, should be laid at the feet of the U.S. healthcare system. The opioid crisis does present as a “wicked problem,”36 however “[e]very wicked problem can be considered to be a symptom of another problem.”37 On a daily basis, many of our fellow citizens must confront problems with our healthcare system. Those with OUD must deal with an amplifed problem: a healthcare system that is particularly poor at providing access to, or delivering appropriate and necessary, healthcare services.
III. Structural Determinants and Overlapping Frames Multiple frames are used to explain the opioids crisis. For example, the linear (or vector) model begins with prescription opioids and their over-prescription causing the crisis, followed by some of the users transitioning over to illegal drugs as the supply
34 See Am. Psychiatric Ass’n, supra note 25, at 546–47; Ayman Fareed et al., Illicit Opioid Intoxication: Diagnosis and Treatment, Substance Abuse: Res. & Treatment, 2011, at 17. 35 David Herzberg et al., Recurring Epidemics of Pharmaceutical Drug Abuse in America: Time for an All–Drug Strategy, 106 Am. J. Pub. Health 408, 409 (2016). 36 Jonathan C. Lee, The Opioid Crisis is A Wicked Problem, 27 Am. J. on Addictions 51, 51 (2017). 37 Horst W.J. Rittel & Melvin M. Webber, Dilemmas in a General Theory of Planning, 4 Pol’y Sci. 155, 165 (1973). 324 Terry of prescription drugs is slowed.38 In fact, only 3.6% of prescription opioid users transition to heroin, but 79.5% of heroin users previously had used prescription opioids.39 As already noted, concentrating on supply fails to factor in the reasons for demand and tends to over- focus interventions on the supply side.40 Increasingly, the opioids crisis has been identifed as a “disease of despair,”41 akin to the “deaths of despair” detailed by Anne Case and Angus Deaton: an increase in mortality and morbidity among non-Hispanic white Americans without college degrees caused in part by “an increasingly difcult labor market.”42 Case and Deaton themselves posit the view that “the prescription of opioids for chronic pain added fuel to the fames, making the epidemic much worse than it otherwise would have been.”43 Dayna Matthew takes a similar approach arguing, “social determinants contribute to hopelessness and social trauma that ‘set the stage’ for opioid abuse and dependency.”44 Social determinants of health, the “complex, integrated, and overlapping social structures and economic systems that are responsible for most health inequities,” are broadly and correctly identifed as causative with regard to diseases of despair including the opioid crisis.45 Paula Braveman and colleagues defne “health
38 See generally Dasgupta et al., supra note 10. 39 Pradip K. Muhuri et al., Associations of Nonmedical Pain Reliever Use and Initiation of Heroin Use in the United States, CBHSQ Data Rev., Aug. 2013, at 2–3. 40 Dasgupta et al., supra note 10, at 182–83. 41 Jef Guo, The Disease Killing White Americans Goes Way Deeper than Opioids, Wash. Post (Mar. 24, 2017), https://www.washingtonpost.com/news/wonk/ wp/2017/03/24/the-disease-killing-white-americans-goes-way-deeper-than- opioids/?noredirect=on&utm_term=.734ce9f859c2; Michael Meit et al., Appalachian Diseases of Despair, Appalachian Regional Commission (Aug. 2017), https://www.arc.gov/research/researchreportdetails.asp?REPORT_ ID=139. 42 Anne Case & Angus Deaton, Mortality and Morbidity in the 21st Century, 2017 Brookings Papers on Econ. Activity 397, 399 [hereinafter Case & Deaton, Mortality and Morbidity]; see also Anne Case & Angus Deaton, Rising Morbidity and Mortality in Midlife Among White Non–Hispanic Americans in the 21st Century, 112 Proc. Nat’l Acad. Sci., Dec. 2015, at 15078 [hereinafter Case & Deaton, Rising Morbidity]. 43 Case & Deaton, Rising Morbidity, at 15078. 44 Dayna Bowen Matthew, Un-Burying the Lead: Public Health Tools Are the Key to Beating the Opioid Epidemic 4 (2018), https://www.brookings.edu/wp-content/uploads/2018/01/es_20180123_ un-burying-the-lead-fnal.pdf. 45 NCHHSTP Social Determinants of Health, Ctrs. for Disease Control VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 325 equity” as “the ethical and human rights principle that motivates us to eliminate health disparities, which are diferences in health or its key determinants (such as education, safe housing, and freedom from discrimination) that adversely afect marginalized or excluded groups.”46 Structural determinants include architectural, economic, or political frameworks that create barriers to remediating social determinants or perpetuate social determinants such as health inequities. This paper argues that the healthcare system has failed those struggling with OUD and co-morbidities and is itself a structural determinant that creates barriers to efective behavioral health services. Flaws in the U.S. healthcare system are clearly not the only structural determinants at play in the opioid crisis. As Dayna Matthew notes, “[s]ocial determinants such as poor housing conditions are often accompanied by neighborhood-level conditions that limit access to health care, risk-reduction information, and treatment alternatives, which are protective resources and can disrupt behaviors that ultimately lead to opioid addiction.”47 A far more specifc example would be adverse policing practices in the vicinity of syringe exchanges.48 Two well-known frameworks may help to pinpoint the areas where the healthcare system has failed the opioid epidemic. First, and at a macro level, the Institute for Healthcare Improvement’s Triple Aim identifes the key goals of our healthcare system: “Improving the patient experience of care (including quality and satisfaction); Improving the health of populations; and Reducing the per capita cost of health care.”49
& Prevention, https://www.cdc.gov/nchhstp/socialdeterminants/ defnitions.html (last updated Mar. 21, 2014); see e.g., Dasgupta et al., supra note 10, at 182–86. 46 Paula Braveman et al., What Is Health Equity? And What Diference Does a Defnition Make?, Robert Wood Johnson Found. 3 (May 2017), https://www.rwjf. org/content/dam/farm/reports/issue_briefs/2017/rwjf437393 (emphasis omitted). 47 Matthew, supra note 44. 48 See generally Leo Beletsky et al., Police Encounters Among Needle Exchange Clients in Baltimore: Drug Law Enforcement as a Structural Determinant of Health, 105 Am. J. Pub. Health 1872 (2015). 49 The IHI Triple Aim, Inst. for Healthcare Improvement, http://www. ihi.org/Engage/Initiatives/TripleAim/Pages/default.aspx (last visited Dec. 8, 2018). See generally Donald M. Berwick et al., The Triple Aim: Care, Health, and Cost, 27 Health Aff. 759 (2008). 326 Terry
Second, and at the micro opioid treatment level, SAMHSA50 and the American Society of Addiction Medicine (“ASAM”) are clear that the standard of care is comprised of the three Food and Drug Administration-approved medication-assisted treatments (“MAT”).51 Additionally, ASAM recommends certain levels of treatment services for those sufering from OUD: level 1 (outpatient services), level 2 (intensive/partial hospitalization services), level 3 (residential/inpatient services), and level 4 (medically managed intensive inpatient services).52 Failures and frequent barriers to efective interventions are as rampant as they are obvious. At the macro level, they involve familiar health policy tropes: limited access to care, high costs, and failures in healthcare delivery. More specifcally, our healthcare system is not providing quality care to those with OUD, failing at the levels of access and the standard of care. Population health (preventative care and public health) continues to be put on a back burner compared to expensive clinical interventions, such as surgery, and our policymakers have completely missed the overwhelming cost- beneft argument for preventative care and wraparound services for those at OUD risk. At the micro level, MAT and appropriate levels of treatment are still unavailable for vast swaths of the population. Moreover, for some cohorts, such as rural populations and those in jails and prisons, the level of neglect is extraordinary. The healthcare system deserves to be called out as a problem: primarily because of its role in causing the crisis and, more importantly, because for so many afected by opioids the healthcare system should have been a solution while in practice it has failed them and frequently amplifed their problems. Foremost, the healthcare system must take some responsibility for the opioids crisis. There is nothing new about opiate-based treatment for pain; it dates back to the 19th century.53 However, in the
50 Medication Assisted Treatment (MAT), SAMHSA, https://www.samhsa.gov/ medication-assisted-treatment (last updated Feb. 7, 2018). 51 Information About Medication–Assisted Treatment (MAT), U.S. Food & Drug Admin., https://www.fda.gov/Drugs/DrugSafety/InformationbyDrugClass/ ucm600092.htm (last updated Oct. 3, 2018). 52 What are the ASAM Levels of Care?, ASAM Continuum (May 13, 2015), https://www.asamcontinuum.org/knowledgebase/what-are-the-asam-levels- of-care. These levels of care are expanded upon at infra text accompanying note 92. 53 See generally Marcia L. Meldrum, A Capsule History of Pain Management, 290 JAMA 2470 (2003). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 327
1990s clinicians were persuaded by the “non-addictive” marketing of Oxycontin.54 Meanwhile, the greater expenses associated with multidisciplinary approaches likely led to their disfavor among providers and insurers, even though such methods can be highly useful.55 Simultaneously, healthcare organizations were responsible for designating pain as the “ffth vital sign”56 and introducing pain management into reimbursement-impacting patient satisfaction scores.57 Whatever the specifc cause, there was a more liberal outlook with regards to opioid prescribing, particularly for nonmalignant pain.58 That prescribing trajectory continued almost as though the 2007 guilty pleas of Purdue Pharma, and three senior executives, to accusations of misleading doctors never happened.59 As already noted, the prescribing vector model for explaining the opioid crisis is both fawed as to causation and tends to lead to over-reliance on supply-side interventions.60 Notwithstanding this fawed hypothesis, the healthcare system, together with those in the opioid prescription drug supply chain, continues to deserve our disapprobation for doing more to cause a problem than solve it.61 More fundamentally, the healthcare system has simply failed those who need it most. Persons with SUD face acute problems in accessing healthcare services. In 2016, 19.9 million adults needed substance use treatment but only 10.8% received specialty treatment; 26.9% of those who did not receive specialty treatment,
54 See Quinones, supra note 19, at 124–27. 55 Id. at 86–87, 97–98; see also Marcia L. Meldrum, The Ongoing Opioid Prescription Epidemic: Historical Context, 106 Am. J. Pub. Health 1365 (2016) [hereinafter Meldrum, Historical Context]. 56 David W. Baker, History of The Joint Commission’s Pain Standards: Lessons for Today’s Prescription Opioid Epidemic, 317 JAMA 1117 (2017); see also Natalia E. Morone & Debra K. Weiner, Pain as the 5th Vital Sign: Exposing the Vital Need for Pain Education, 35 Clinical Therapeutics 1728 (2013). 57 See generally Jay. S. Lee et al., Postoperative Opioid Prescribing and the Pain Scores on Hospital Consumer Assessment of Healthcare Providers and Systems Survey, 317 JAMA 2013 (2017). 58 See id.; see also Meldrum, Historical Context, supra note 55, at 1365–66. 59 Barry Meier, In Guilty Plea, OxyContin Maker to Pay $600 Million, N.Y. Times (May 10, 2007), https://www.nytimes.com/2007/05/10/business/11drug- web.html. 60 See Rittel, supra note 37. 61 See, e.g., Michael E. Schatman & Lynn R. Webster, The Health Insurance Industry: Perpetuating the Opioid Crisis Through Policies of Cost-Containment and Proftability, 8 J. Pain Res. 153, 155–56 (2015). 328 Terry but perceived that they did need it, cited no healthcare coverage and not being able to aford the cost of treatment as reasons for non-treatment.62 The history is plain to see, with the healthcare system (from policymakers, to insurers, to healthcare institutions and clinicians) failing those requiring behavioral healthcare services. It was not until the 2008 passage of The Mental Health Parity and Addiction Equity Act (“MHPAEA”)63 that health insurers had to treat behavioral health benefts on a par with medical or surgical benefts. The ACA64 continued its work by, for example, including behavioral health as one of the statute’s essential health benefts (“EHBs”).65 However, while there have been modest increases in behavioral health spending,66 there have been numerous complaints about its impact and, in particular, its enforcement.67 Some of healthcare’s failings are better understood as fundamental systems problems. Nabarun Dasgupta and colleagues catalog some of healthcare’s failures: a system ill-equipped to coordinate a combination of social and clinical ills, fragmentation (and sometimes cessation) of care, limited access to MAT, and an inability to provide wraparound services.68 Other issues that may create barriers to treatment range from a lack of culturally competent
62 Eunice Park-Lee et al., Substance Abuse & Mental Health Serv. Admin., Receipt of Services for Substance Use and Mental Health Issues Among Adults: Results from the 2016 National Survey on Drug Use and Health (2017). 63 Emergency Economic Stabilization Act of 2008, Pub. L. 110-343, § 511, 122 Stat. 3765 (2008). See generally Implementation of the Mental Health Parity and Addiction Equity Act (MHPAEA), Substance Abuse & Mental Health Serv. Admin., https://www.samhsa.gov/health-fnancing/implementation- mental-health-parity-addiction-equity-act (last updated Jan. 24, 2017). 64 Patient Protection and Afordable Care Act, 42 U.S.C. § 180001 (2018). 65 Id. See generally Richard G. Frank et al., Behavioral Health Parity and the Afordable Care Act, 13 J. Soc. Work Disability & Rehabilitation 31 (2015). 66 Sarah Friedman et al., The Mental Health Parity and Addiction Equity Act Evaluation Study: Impact on Specialty Behavioral Healthcare Utilization and Spending Among Enrollees with Substance Use Disorders, 80 J. Substance Abuse Treatment 67 (2017). 67 Jenny Gold, Advocates Say Mental Health ‘Parity’ Law is Not Fulflling its Promise, Kaiser Health News (Aug. 3, 2015), https://khn.org/news/advocates- say-mental-health-parity-law-is-not-fulflling-its-promise/. 68 See Dasgupta et al., supra note 10, at 184. Wraparound services are considered to be “non-clinical services that facilitate patient engagement and retention in treatment as well as their ongoing recovery.” U.S. Dep’t of Health & Human Servs., Office of the Surgeon Gen., Facing Addiction in America: The Surgeon General’s Report on Alcohol, Drugs, and Health 5–6 (2016). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 329 health services, or professionals, when dealing with the poor, the addicted, or the mentally ill; to concerns about cost; the likelihood of experiencing stigma; or even apprehension about sub-optimal “care” that focuses on detox and potentially painful withdrawal.69
IV. Healthcare Structural Determinants Versus Opioid Responses Most systems, be they industrial, technological, or social services, are designed primarily to function for average use; to respond to the mean. As a result, systems will experience outlying events as stressors. Most will survive such an event, and some are even capable of temporary ramp-ups to handle the outliers. However, the U.S. healthcare ecosystem is uniquely fragile. In large part, because it is not a single “system,” it seems to have particular difculties responding to stressors whether they be pandemics, syndemics, or natural disasters. For example, problems with healthcare delivery were quite apparent in the aftermath of Hurricane Katrina and during the Ebola outbreak.70 Structural barriers to healthcare access and delivery are deeply seated and path dependent—even once-in-a-generation major legislative and funding eforts, such as the ACA,71 only make incremental changes to a system populated by persons and institutions who lack incentives to change. The U.S. healthcare system is not a particularly good one when measured against metrics such as access, cost, or outcomes.72 While it can excel at some tasks
69 Of course, this is something of an oversimplifcation. Barriers to treatment are multiple, quite complicated, and include a lack of help-seeking behavior. See, e.g., Philip W. Appel et al., Barriers to Enrollment in Drug Abuse Treatment and Suggestions for Reducing Them: Opinions of Drug Injecting Street Outreach Clients and Other System Stakeholders, 30 Am. J. Drug & Alcohol Abuse 129 (2004). 70 See, e.g., Josh Voorhees, Everything That Went Wrong in Dallas: A Timeline of the Many Missteps Surrounding the First Cases of Ebola Diagnosed in the United States, Slate (Oct. 16 2014), http://www.slate.com/articles/health_and_science/ medical_examiner/2014/10/dallas_ebola_timeline_the_many_medical_ missteps_at_texas_health_presbyterian.html; Alyssa Rege, How Hurricane Katrina Impacted Healthcare in New Orleans and What That May Mean for Houston, Becker’s Hosp. R. (Aug. 29, 2017), https://www.beckershospitalreview. com/patient-flow/how-hurricane-katrina-impacted-healthcare-in-new- orleans-and-what-that-may-mean-for-houston-5-takeaways.html. 71 Patient Protection and Afordable Care Act, 42 U.S.C. § 18001 (2018). 72 See, e.g., Leah A. Burke & Andrew M. Ryan, The Complex Relationship Between Cost and Quality in US Health Care, 16 Am. Med. Ass’n J. Ethics 124, 127 (2014); Cynthia Cox & Bradley Sawyer, How Does Cost Afect Access to Care?, Kaiser Family Found.: Peterson-Kaiser Health System Tracker (Jan. 17, 2018), https://www.healthsystemtracker.org/chart-collection/cost- 330 Terry such as complex surgeries, its strength does not lie in diagnostics or treating chronic illnesses73—areas of great need for those with OUD. The U.S. healthcare system’s major operational defciencies are well known. For example, the U.S. spends more on its healthcare than any other economically advanced country yet receives less both in terms of the percentage of the population receiving care and the quality of the care provided.74 The list of symptoms and causative factors is long and includes: access problems (particularly for the poor and the near poor), high and increasing costs (including insurance costs, prescription drug costs, and cost-shifting), substandard care coordination, a frequently incoherent healthcare delivery model involving multiple types of entities and or reimbursement models, and severe defciencies in data management and sharing.75 These, among many others, are architectural, fnancing, or implementation faws that have presented as barriers to efective responses to the opioid crisis. This article concentrates on only a few of the myriad defects in our healthcare system; those that play out with particular force in the context of the opioid crisis. First, the difculty of access to healthcare services is illustrated by examining the stratifed manner in which persons are provided access to healthcare insurance: the gateway to healthcare in the U.S. Second, and closely related to the frst, is the recent whiplash phenomenon associated with Medicaid, the insurance system arguably best positioned to provide preventative care and treatment for those susceptible to diseases of despair but which increasingly is beginning to act more like a problem than a solution. Third, behavioral and non-behavioral health disciplines have developed with diferential architectures, both as to treatment models, locations, and data sharing—defects that highlight the healthcare system’s fundamental inability to provide care coordination and wraparound services.
afect-access-care/. 73 See, e.g., U.S. Spends More on Health Care Than Other High-Income Nations but has Lower Life Expectancy, Worse Health, Commonwealth Fund (Oct. 8, 2015), http://www.commonwealthfund.org/publications/press-releases/2015/oct/ us-spends-more-on-health-care-than-other-nations. 74 See id.; Melissa Etehad & Kyle Kim, The U.S. Spends More on Healthcare Than Any Other Country—But Not with Better Health Outcomes, L.A. Times (July 28, 2017), https://www.latimes.com/nation/la-na-healthcare-comparison-20170715- htmlstory.html. 75 See Nicolas P. Terry, Pit Crews with Computers: Can Health Information Technology Fix Fragmented Care?, 14 Houston J. Health L. & Pol’y 132 (2014). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 331
A. The Standard of Care The ideal treatment of addiction is to “address the needs of the whole person,” selecting from a menu of services.76 Although detoxifcation and recovery models, such as 12-step programs, are used in the OUD space, the standard of care for severe OUD is MAT,77 the use of FDA-approved medications in combination with counseling, and behavioral therapies.78 Although more treatment modes are promised,79 currently there are three: those using methadone, buprenorphine, or naltrexone. While all three modes are generally safe, and reduce the risk of overdose, they difer in their chemical efects and, as a result, the conditions imposed on their delivery.80 As to the former, methadone is an agonist, buprenorphine a partial agonist, and naltrexone is an antagonist.81 These labels describe how closely their chemical efects resemble or mimic opioids; an agonist essentially tricks the brain into thinking there is an opioid present (by reducing cravings and delaying withdrawal), while an antagonist blocks an opioid from
76 Drugs, Brains, and Behavior: The Science of Addiction, Nat’l Inst. on Drug Abuse, https://www.drugabuse.gov/publications/drugs-brains-behavior- science-addiction/treatment-recovery (last updated July 2018). 77 Nora D. Volkow et al., Medication-Assisted Therapies — Tackling the Opioid- Overdose Epidemic, 370 New Eng. J. Med. 2063 (2014); see also Drugs, Brains, and Behavior: The Science of Addiction, supra note 76 (“Research shows that when treating addictions to opioids (prescription pain relievers or drugs like heroin or fentanyl), medication should be the frst line of treatment, usually combined with some form of behavioral therapy or counseling.”). 78 Medication-Assisted Treatment (MAT), Substance Abuse and Mental Health Serv. Admin., https://www.samhsa.gov/medication-assisted- treatment (last updated Feb. 7, 2018); see also CDER Conversation: Treatment for Opioid Use Disorder, U.S. Food & Drug Admin. (July 28, 2018), https://www. fda.gov/Drugs/NewsEvents/ucm611659.htm. See generally Kate Sheridan, How Efective is Medication-Assisted Treatment for Addiction? Here’s the Science, STATNews (May 15, 2017), https://www.statnews.com/2017/05/15/ medication-assisted-treatment-what-we-know/. 79 Press release, U.S. FDA, FDA Takes New Steps to Encourage the Development of Novel Medicines for the Treatment of Opioid Use Disorder (Aug. 6, 2018), https://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ ucm615892.htm. 80 Sheridan, supra note 78. 81 Cathie E. Alderks, Substance Abuse and Mental Health Serv. Admin., Trends in the Use of Methadone, Buprenorphone, and Extended-Release Naltrexone at Substance Abuse Treatment Facilities: 2003–2015 1 (Aug. 22, 2017), https://www.samhsa.gov/data/ sites/default/fles/report_3192/ShortReport-3192.pdf. 332 Terry having any efect on the brain.82 While the agonists, methadone and buprenorphine, are chemically related to opioids, the antagonist naltrexone is not opioid-based83 (and so unlikely to be the subject of diversion). SAMHSA requires that methadone only be dispensed through an opioid treatment program (“OTP”) accredited by a “federally deemed accrediting body,”84 while physicians who have obtained a Drug Enforcement Administration waiver, which requires buprenorphine-specifc training, may prescribe buprenorphine,85 and any licensed provider can prescribe naltrexone.86 Patients should be evaluated to determine the most appropriate individual treatment, typically using the ASAM clinical guidelines.87 Methadone is associated with robust long-term recovery but must be carefully calibrated and is prone to abuse or diversion,88 while naltrexone should not be administered before full opioid withdrawal.89 There is also some evidence that buprenorphine is superior to methadone for use by pregnant women, as fetal outcomes are slightly better.90 Diferent clinical states of patients and their diferent contexts infuence the choice of drug and emphasizes that the standard of
82 Sheridan, supra note 78; see also Medication-Assisted Treatment: Naltrexone, Substance Abuse and Mental Health Serv. Admin., https://www. samhsa.gov/medication-assisted-treatment/treatment/naltrexone (last visited Dec. 18, 2018). 83 Medication-Assisted Treatment (MAT), supra note 78. 84 For background on the accreditation process see Opioid Treatment Program (OTP) Accreditation, Joint Comm’n (Nov. 14, 2018), https://www.jointcommission. org/facts_opioid_treatment_program_otp_accreditation/. 85 See generally Medication-Assisted Treatment: Buprenorphine Waiver Management, Substance Abuse and Mental Health Serv. Admin., https://www. samhsa.gov/programs-campaigns/medication-assisted-treatment/training- materials-resources/buprenorphine-waiver (last updated Jan. 18, 2018). 86 Medication-Assisted Treatment: Naltrexone, supra note 82. 87 Kyle Kampman & Margaret Jarvis, American Society of Addiction Medicine National Practice Guideline for the Use of Medications in the Treatment of Addiction Involving Opioid Use, 9(5) J. of Addiction Med. 358 (2015). 88 How efective are medications to treat opioid use disorder?, Nat’l Inst. Drug Abuse (June 2018), https://www.drugabuse.gov/publications/research- reports/medications-to-treat-opioid-addiction/efcacy-medications-opioid- use-disorder. See generally Herbert D. Kleber, Pharmacologic Treatments for Opioid Dependence: Detoxifcation and Maintenance Options, 9 Dialogues Clinical Neuroscience 455 (2007). 89 Medication-Assisted Treatment: Naltrexone, supra note 82. 90 Barbara K. Zedler, et al., Buprenorphine Compared with Methadone to Treat Pregnant Women with Opioid Use Disorder: A Systematic Review and Meta-Analysis of Safety in the Mother, Fetus and Child, 111 Addiction 2115 (2016). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 333 care requires the availability of all three forms of MAT. Assessment of the recommended levels of care increasingly also is performed by reference to ASAM guidelines. In general, Level 1 refers to outpatient services; Level 2 intensive outpatient services; Level 3 residential inpatient services; and Level 4 intensive inpatient services.91 ASAM also recognizes additional point levels. These include Level 0.5 (early intervention), 2.5 (partial hospitalization service), and 3.5 (clinically-managed, high-intensity residential services for adults and medium-intensity for adolescents).92 The standard of care notwithstanding, there are some very obvious examples of structural determinants (and not only in jails and prisons where the standard of care seldom is met). Across the nation, there are a limited number of OTPs certifed by SAMHSA, with a few states having none,93 while there are state variations in the number of providers who have applied for the buprenorphine waiver.94
B. Stratification and Benefit Indeterminacy If educational, physical, and economic environments are social determinants of health, then limited access, high costs, and insufcient (limited or poor quality) services are structural determinants. Those with OUD are disproportionately represented in the cohorts without access or faced with social, fnancial, demonstrative, geographical, or other barriers to health.95 These barriers are caused or exacerbated not only by the barriers intrinsic to each stratum (e.g., eligibility, cost-sharing, etc.) but also by the very fact of stratifcation. The root causes of this stratifcation are decisions that were made during the Second World War that linked healthcare
91 E. Chuang et al., Factors Associated with Use of ASAM Criteria and Service Provision in a National Sample of Outpatient Substance Abuse Treatment Units, 3 J. Addiction Med. 139 (2009). 92 What are the ASAM Levels of Care?, Continuum: ASAM Criteria Decision Engine (May 13, 2015), https://www.asamcontinuum.org/knowledgebase/ what-are-the-asam-levels-of-care/. 93 Opioid Treatment Program Directory, Substance Abuse and Mental Health Servs. Admin., https://dpt2.samhsa.gov/treatment/directory.aspx (last visited Jan. 27, 2019). 94 Number of DATA-Waived Practitioners Newly Certifed Per Year, Substance Abuse & Mental Health Servs. Admin., https://www.samhsa.gov/medication- assisted-treatment/treatment (last visited Jan. 27, 2019). 95 Kenneth A. Feder et al., Trends in Insurance Coverage and Treatment Among Persons with Opioid Use Disorders Following the Afordable Care Act, 179 Drug & Alcohol Dependence 271 (2017). 334 Terry to health insurance and health insurance to employment.96 Writing before the ACA, Atul Gawande noted the path-dependence that has resulted.97 Today, employer-provided private coverage remains our gold standard, with the constructs, such as managed care, designed to keep it afoat occasionally migrating to public insurance. Worse, health insurance provided outside of that idealized private scenario is viewed as suspect and increasingly as exceptional rather than a foundation on which to embrace and build universality. And, most sadly, the association of health insurance with employment has led to some embracing the perverse mission of curtailing Medicaid for those not working.98 While many with OUD work, a large minority of them do not have access to the gold standard of employer group coverage,99 the Medicaid that so many rely on is under political attack,100 and their very eligibility for public health insurance may be at risk because of emerging administrative and work requirements.101
1. Diferentially-Treated Cohorts Stratifcation tends to be based on income (or the lack thereof) expressed in terms of relative variance from the Federal Poverty Level (“FPL”).102 As these vary, benefciaries on the edge of the qualifcation tiers may experience churn between types of insurance, exacerbating indeterminacy of insurance and so healthcare.103 There may also be a political cost. Persons on the margins of what are, after all, arbitrary eligibility dividing lines between coverages with diferent benefts
96 See Dan Gorenstein, How Did We End Up with Health Insurance Being Tied to Our Jobs?, Marketplace (June 28, 2017, 4:00 PM), https://www.marketplace. org/2017/06/28/health-care/how-did-we-end-health-insurance-being-tied- our-jobs. 97 Atul Gawande, Getting There from Here, New Yorker: Annals Pub. Pol’y, (Jan. 26, 2009), https://www.newyorker.com/magazine/2009/01/26/getting- there-from-here. 98 See infra text accompanying note 172. 99 The NSDUH Report, Substance Abuse and Mental Health Servs. Admin. (Aug. 7. 2014), https://www.samhsa.gov/data/sites/default/fles/ NSDUH-SP132-FullTime-2014/NSDUH-SP132-FullTime-2014.pdf. 100 See discussion infra Section C. 101 Sara Rosenbaum, Stewart v. Azar and the Future of Medicaid Work Requirements, Commonwealth Fund (July 3, 2018), https://www.commonwealthfund. org/future-of-Medicaid-work-requirements. 102 See generally Federal Poverty Level, Healthcare.gov, https://www.healthcare. gov/glossary/federal-poverty-level-fpl/ (last visited Dec. 16, 2018). 103 See generally Health Insurance Churn: The Basics, Community Catalyst (Nov. 2016), https://www.communitycatalyst.org/resources/publications/ document/Health-Insurance-Churn-November-2016_FINAL.pdf. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 335 or premiums, may feel animosity to cohorts “treated better” on the other side of a cut-of (e.g., someone at 200 FPL comparing their premiums with those in the Medicaid expansion cohort).104 For decades, access to health insurance has been the key to access to healthcare in the U.S.105 Those who cannot aford insurance are often denied access to healthcare.106 Notwithstanding the reforms introduced by the ACA, 15.5% of those of working-age remain uninsured.107 Those most at risk of being uninsured are those with low-income and people of color.108 Although the majority of nonelderly adults with opioid addiction are employed, 109 they likely have low incomes and are therefore less likely than adults with higher incomes to have employer-provided health insurance. Approximately 10% are unemployed and 13% are disabled, and as a group they tend to sufer from comorbidities.110 When the Supreme Court in NFIB v. Sebelius111 rendered Medicaid expansion voluntary for the states, it opened up another cleavage in access to healthcare, one based on the accident of state of residence. Over two million of the uninsured cohort lack health insurance because their states of residence (primarily in the south and, typically, correlating with poor social determinants) have decided to forego Medicaid expansion.112
104 See Louise Norris, The ACA’s Cost-Sharing Subsidies, healthinsurance.org (Dec. 11, 2018), https://www.healthinsurance.org/obamacare/the-acas-cost- sharing-subsidies/. 105 See generally Christy Ford Chapin, Ensuring America’s Health: The Public Creation of the Corporate Health Care System (2017). 106 See generally Beatrix Hoffman, Health Care for Some: Rights and Rationing in the United States since 1930 (2012). 107 Sara R. Collins et al., First Look at Health Insurance Coverage in 2018 Finds ACA Gains Beginning to Reverse, Commonwealth Fund: To the Point (May 1, 2018), https://www.commonwealthfund.org/blog/2018/frst-look-health- insurance-coverage-2018-fnds-aca-gains-beginning-reverse. 108 Julia Foutz et al., The Uninsured: A Primer 1 (2017), http://fles.kf. org/attachment/Report-The-Uninsured-A-Primer-Key-Facts-about-Health- Insurance-and-the-Uninsured-Under-the-Afordable-Care-Act. 109 NSDUH Report, supra note 99. 110 Julia Zur & Jennifer Tolbert, The Opioid Epidemic and Medicaid’s Role in Facilitating Access to Treatment, KFF (Apr. 11, 2018), https://www.kf.org/medicaid/ issue-brief/the-opioid-epidemic-and-medicaids-role-in-facilitating-access-to- treatment/. 111 NFIB v. Sebelius, 567 U.S. 519, 585 (2012). 112 Rachel Garfeld et al., The Coverage Gap: Uninsured Poor Adults in States that Do Not Expand Medicaid, KFF (June 12, 2018), https://www.kf.org/medicaid/ issue-brief/the-coverage-gap-uninsured-poor-adults-in-states-that-do-not- 336 Terry
In the stratifed world of health insurance (and so of access to healthcare), the frst stratum to recognize is the uninsured. Being uninsured does not preclude all access to healthcare. However, safety- net care such as emergency department access courtesy of Emergency Medical Treatment & Labor Act (“EMTALA”)113 only provides emergency care, not the preventative or chronic care necessary to identify or treat addictions.114 As Julia Foutz and colleagues express the issue: “[h]ealth insurance makes a diference in whether and when people get necessary medical care, where they get their care, and ultimately, how healthy they are. Uninsured people are far more likely than those with insurance to postpone health care or forgo it altogether.”115 Insured versus uninsured status is not a simple binary. The uninsured cohort is relatively cohesive; there may be some wealthy persons who forego insurance, but the overwhelming majority of the uninsured cohort are poor, likely sufering from one or more diseases of despair, and highly unlikely to have access to OUD treatment within the standard of care.116 In contrast, the insured are highly stratifed. The largest stratum (approximately 50% of those with health insurance)117 consists of those whose insurance is provided by their employer. In most cases their insurance will provide behavioral health coverage and therefore likely paths to treatment and recovery.118 However, as the President’s Commission recognized, “[t]here are commercial
expand-medicaid/; see also Fredric Blavin et al., Medicaid Versus Marketplace Coverage For Near-Poor Adults: Efects On Out-Of-Pocket Spending And Coverage, 37 Health Aff. 299 (2018). 113 Social Security Act of 1935 § 1867, 42 U.S.C. § 1395 (2018). 114 See Sawyer, N. T., Why the EMTALA Mandate for Emergency Care Does not Equal Healthcare “Coverage”, 18 Western J. Emergency Med. 551, 551–52 (2017). 115 Foutz, supra note 108. 116 Feder, supra note 95. See also Li-Tzy Wu et al., Treatment Utilization Among Persons with Opioid Use Disorder in the United States, 169 Drug & Alcohol Dependence 117 (2016); Praise O. Iyiewuare et al., Demographic and Mental Health Characteristics of Individuals Who Present to Community Health Clinics with Substance Misuse, 4 Health Serv. Res. & Managerial Epidemiology 1 (2017). 117 Henry J. Kaiser Family Foundation, Health Insurance Coverage of the Total Population (2017), https://www.kf.org/other/state- indicator/total-population/?. 118 Jessica M. Harwood et al., The Mental Health Parity and Addiction Equity Act Evaluation Study, 55 Med. Care 164 (2017). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 337 insurance barriers to MAT, such as dangerous fail-frst protocols and onerous and frequent prior authorization requirements.”119 Additionally, this predominantly white, middle class group will fnd their treatment restricted in similar ways to the rest of their healthcare, with limits on types and days of care and massive cost shifting when using out-of-network care120 (a real likelihood given the dearth of opioid treatment providers). Looking forward, the actuarial value of employer-provided coverage is in steep decline, creating a new stratum—the underinsured—who increasingly cannot aford to undertake their insured treatment or care because of high deductibles or other cost-shifting.121 Outside of employer-provided group coverage the insured generally fall into one of four health insurance cohorts: Medicare, Medicaid, Expanded Medicaid, or the Exchange Marketplaces.122 Of these, Medicare has the greatest access to OUD care with the fewest barriers. Medicare enrollees, the elderly and near-elderly, do not immediately seem to ft the OUD demographic. However, they make up about 25% of long-term opioid users123 and are among the fastest growing population with diagnosed OUD.124
119 Governor Chris Christie et al., The President’s Commission on Combating Drug Addiction and The Opioid Crisis 70 (2017). 120 Inst. of Med. Comm. on Opportunities in Drug Abuse Research, Pathways of Addiction: Opportunities in Drug Abuse Research (2018); see also A Consumer’s Guide to the Mental Health Parity and Addiction Equity Act, Nat’l Disability Navigator, http://www.nationaldisabilitynavigator. org/wp-content/uploads/resources-links/SAMHSA-Parity-guide.pdf. 121 See Thomas Beaton, Health Plan Cost Sharing, Deductibles Outpace Members’ Wage Growth, HealthPayerIntelligence (July 12, 2018), https:// healthpayerintelligence.com/news/health-plan-cost-sharing-deductibles- outpace-members-wage-growth. See generally David Blumenthal, The Decline of Employer-Sponsored Health Insurance, The Commonwealth Fund: To the Point (Dec. 5, 2017), https://www.commonwealthfund.org/blog/2017/ decline-employer-sponsored-health-insurance. 122 This is an oversimplifcation because some persons will be insured by small group insurance, Short-Term, Limited-Duration Insurance, Association Health Plans, grandfathered Basic Health Plans in New York and Minnesota, and so on. However, for the purposes of this article these plans are statistically irrelevant. 123 See Ramin Mojtabai, National Trends in Long-Term Use of Prescription Opioids, 27 Pharmacoepidemiology & Drug Safety 526 (2017). See also Audrey J. Weiss et al., Opioid-Related Inpatient Stays and Emergency Department Visits Among Patients Aged 65 Years and Older, 2010 and 2015, Healthcare Cost and Utilization Project (Sept. 2018), https://www.ahrq.gov/news/ newsroom/press-releases/seniors-struggles-with-opioids.html. 124 Ctrs. for Medicare & Medicaid Servs., Opioid Misuse Strategy 338 Terry
Medicare provides broad access to MAT, though there are some quirky omissions. In the words of one MAT provider, “[w]hile Medicare pays for the pain medications that are contributing to the OUD epidemic, it does not pay for the full range of treatment options necessary to treat benefciaries’ addiction.”125 Indeed, one of the greatest ironies is that Medicare covers methadone for the treatment of pain but not for the treatment of OUD. This is because Medicare Part D (covering prescription drugs) does not include methadone or buprenorphine when used for treatment of opioid dependence in an opioid treatment program (in large part this is because Part D only applies to retail pharmacy distribution).126 MAT is less likely to be covered by traditional Medicare Part C but could be covered by Part C Medicare Advantage if they are part of a “bundled” service.127
2. Acute Stratification on the Exchanges After Employer-Group and Medicare insurance, stratifcation increases apace. Health Insurance Marketplace plans, those established by the ACA,128 are sold from online marketplaces or exchanges. The exchanges may be established and managed either by states or, if they are unwilling, by the federal government.129 The policies ofered on the exchanges are standardized; that is, they all ofer the same benefts. However, their premium costs difer.130 The plans often are referred to collectively as the “metallics” because
2016, 1 (2017), https://www.cms.gov/Outreach-and-Education/Outreach/ Partnerships/ Downloads/CMS-Opioid-Misuse- Strategy-2016.pdf. 125 The Opioid Crisis: Removing Barriers to Prevent and Treat Opioid Abuse and Dependence in Medicare, Hearing Before the H. Comm. on Ways & Means, 115th Cong. 6 (2018) (statement of Jason Kletter, President, BayMark Health Services), https:// waysandmeans.house.gov/wp-content/uploads/2018/02/20180206-HL- Testimony-Kletter.pdf [hereinafter Kletter, Opioid Crisis]. 126 See generally Ctrs. for Medicare & Medicaid Servs., supra note 124, at 17. 127 Kletter, Opioid Crisis, supra note 125. See generally Ctrs. for Medicare & Medicaid Servs., Medicare Coverage of Substance Abuse Services (2016), https://www.cms.gov/Outreach-and-Education/Medicare- Learning-Network-MLN/MLNMattersArticles/downloads/SE1604.pdf. 128 Patient Protection and Afordable Care Act § 1311(b), 42 U.S.C. § 18001 (2018). 129 See generally Patient Protection and Afordable Care Act, 42 U.S.C. §§ 18031– 41 (2018). 130 The ‘Metal’ Categories: Bronze, Silver, Gold & Platinum, Healthcare.gov, https://www.healthcare.gov/choose-a-plan/plans-categories/ (last visited Dec. 23, 2018) [hereinafter Metal Categories]. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 339 of their gold, silver, bronze, etc., nomenclature.131 The plans (and so their premiums) difer according to their actuarial value: that “percentage of total average costs for covered benefts that a plan will cover.”132 At frst sight, the choice between the metallics would be based on the level of out-of-pocket risk a person wishes to assume and, assuming a somewhat competitive state marketplace,133 the plan cost. However, that “simple” model becomes more complicated and stratifed because of how the ACA made premiums afordable (via tax credits)134 and reduced the impact of cost-sharing (via insurance- company provided, but (originally) federal government fnanced, subsidies) for lower income persons.135 In general terms, persons are eligible for fnancial assistance if their income is between 100% and 400% of the FPL.136 In Medicaid expansion states, such assistance would apply to those between <138% and 400% FPL with expanded Medicaid picking up the cohort between 100% and 138% FPL. The premium tax credits are calculated on the basis of a family’s modifed adjusted gross income and size and apply to all of the metallics. Cost-sharing subsidies apply only to those enrolled in their state’s
131 Metal Levels for Health Insurance Plans, eHealth (Oct. 9, 2014), https://www. ehealthinsurance.com/resources/afordable-care-act/metallic-health-plan- levels; Understanding the Healthcare Exchange Plan Ofering, Forbes (Sept. 24, 2013 8:37AM), https://www.forbes.com/sites/thesba/2013/09/24/ understanding-the-exchange-plan-ofering/#7942c75f72bc; see Metal Categories, supra note 130. 132 Glossary Defnition of Actuarial Value, Healthcare.gov, https://www. healthcare.gov/glossary/actuarial-value/ (last visited Dec 23, 2018); see, e.g., What’s the Diference Between Bronze, Silver and Gold Plans?, Blue Cross Blue Shield Blue Care Network of Mich., https://www.bcbsm.com/index/ health-insurance-help/faqs/topics/buying-insurance/metal-tiers.html (last visited Dec. 23, 2018). 133 See generally Cynthia Cox et al., Sizing Up Exchange Market Competition, Henry J. Kaiser Fam. Found. (Mar. 17, 2014), https://www.kf.org/health-reform/ issue-brief/sizing-up-exchange-market-competition/. 134 See generally King v. Burwell, 135 S. Ct. 2480 (2015) (holding that the ACA authorized tax credits for health insurance purchased either from state or federally established exchanges). 135 See generally Bernadette Fernandez, Cong. Research Serv., Health Insurance Premium Tax Credits and Cost-Sharing Subsidies (2018), https://fas.org/sgp/crs/misc/R44425.pdf. 136 “Federal poverty levels are used to determine your eligibility for certain programs and benefts, including savings on Marketplace health insurance, and Medicaid and CHIP coverage.” Glossary Defnition of Federal Poverty Level (FPL), HealthCare.gov, https://www.healthcare.gov/glossary/federal- poverty-level-fpl/ (last visited Dec. 23, 2018). 340 Terry
“silver” plan and apply only to those between 100% (or <138% in an expansion state) and 250% FPL.137 Another wrinkle and potentially destabilizing occurrence was the 2017 decision by the Trump Administration to stop making the payments (known as Cost-Sharing Reduction Payments) to insurance companies that compensated them for providing the cost-sharing subsidies to their very low-income customers.138 However, under the ACA, insurance companies were still responsible for subsidizing the silver plan cost-sharing by increasing the actuarial value of policies purchased by those eligible for cost-sharing subsidies.139 Absorbing those costs would cause costs, and hence premiums, to rise. Insurers’ rather clever retort was to disproportionally increase the cost of silver plans.140 This strategy keeps non-sliver plans relatively afordable while essentially passing on to the federal government the increased cost of silvers plans.141 Notwithstanding, this strategy may increase insurance costs for the cohort that has income <400% FPL and so lacks tax credits to ofset the large premium increases.142 Moreover, as the cost of exchange-based insurance for the unsubsidized cohort rises, they are going to be far less likely to purchase insurance, thereby reverting to uninsured status. Cost increases and concomitant declines in the number of insured likely will
137 See Questions and Answers on the Premium Tax Credit, IRS, https://www.irs.gov/ afordable-care-act/individuals-and-families/questions-and-answers-on-the- premium-tax-credit (last updated Mar. 16, 2018); Louise Norris, The ACA’s Cost-Sharing Subsidies, HealthInsurance.org (Dec. 27, 2018), https:// www.healthinsurance.org/obamacare/the-acas-cost-sharing-subsidies/. 138 Much of the (somewhat arcane) history is to be found in the now settled litigation referred to as U.S. House of Representatives v. Price, No. 16 –5202, 2017 WL 3271445 (D.C. Cir. Aug. 1, 2017). See also Sarah Lueck, Trump Move Would Boost Premiums, Raise Federal Costs, Destabilize Insurance Market, Ctr. on Budget & Pol’y Priorities (July 31, 2017, 4:30 PM), https://www. cbpp.org/blog/trump-move-would-boost-premiums-raise-federal-costs- destabilize-insurance-market. 139 Patient Protection and Afordable Care Act, 42 U.S.C. § 18001 (2018). 140 Rabah Kamal et al., How the Loss of Cost-Sharing Subsidy Payments is Afecting 2018 Premiums, Henry J. Kaiser Fam. Found. (Oct. 27, 2017), https://www. kff.org/health-reform/issue-brief/how-the-loss-of-cost-sharing-subsidy- payments-is-afecting-2018-premiums/. 141 See Margot Sanger-Katz, Trump’s Attack on Insurer ‘Gravy Train’ Could Actually Help a Lot of Consumers, N.Y. Times (Oct. 18, 2017), https://www.nytimes. com/2017/10/18/upshot/trumps-attack-on-insurer-gravy-train-could- actually-help-a-lot-of-consumers.html?. 142 See id. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 341 be accelerated in 2019 with the demise of the individual mandate,143 and the likely further destabilization of the marketplace risk pools as the Trump Administration’s favored Short-Term, Limited-Duration Insurance144 and Association Health Plans (“AHPs”) come online.145 Stratifcation and persistent questions about afordability aside, marketplace plans do provide coverage for behavioral healthcare as an EHB.146 Unfortunately, this is one point at which the conventional wisdom that health insurance equals access to healthcare breaks down. The problem is that insurance provides reimbursement, not care, and so is dependent on the insurer having adequate treatment relationships with behavioral healthcare providers. In 2017, Stephen Melek and colleagues published a major study examining relative access to behavioral healthcare, fnding both major disparities in the use of out-of-network providers (and so higher-priced or non-reimbursed services) and in reimbursement rates for behavioral healthcare providers. Specifcally, the researchers found that for the period from 2013–2015 “the proportion of inpatient facility services for behavioral healthcare that were provided out-of-network was 2.8 to 4.2 times higher than for medical/surgical services, and the proportion of outpatient facility services for behavioral healthcare that were provided out-of-network was 3.0 to 5.8 times higher than for medical/surgical services.”147
143 See Tax Cuts and Jobs Act, Pub. L. No. 115-97, 131 Stat. 424 (2017) (codifed at I.R.C. 48 § 5000A) (reducing penalty for not having insurance to $0); see also Christine Eibner & Sarah Nowak, The Efect of Eliminating the Individual Mandate Penalty and the Role of Behavioral Factors, The Commonwealth Fund (July 11, 2018), https://www.commonwealthfund.org/publications/fund- reports/2018/jul/eliminating-individual-mandate-penalty-behavioral-factors. 144 See generally Karen Pollitz et al., Understanding Short-Term Limited Duration Health Insurance, Henry J. Kaiser Fam. Found. (Apr. 23, 2018), https://www.kf. org/health-reform/issue-brief/understanding-short-term-limited-duration- health-insurance/. 145 See John Arensmeyer, Association Health Plans Will Destabilize Small Group Market, Small Bus. Majority (June 19, 2018), http://www.smallbusinessmajority. org/press-release/association-health-plans-will-destabilize-small-group- market. 146 See What Marketplace Health Insurance Plans Cover, Healthcare.Gov, https:// www.healthcare.gov/coverage/what-marketplace-plans-cover/ (last visited Feb. 6, 2019). 147 Stephen P. Melek et al., Mental Health Treatment & Research Inst., Addiction and Mental Health vs. Physical Health: Analyzing Disparities in Network Use and Provider Reimbursement Rates 1 (2017), http://www.milliman.com/ uploadedFiles/insight/2017/NQTLDisparityAnalysis.pdf. 342 Terry
Regarding reimbursement, “primary care providers were paid 20.7% to 22.0% higher rates for ofce visits than behavioral providers, and medical/surgical specialty care providers were paid 17.1% to 19.1% higher rates for ofce visits than behavioral providers.”148 Research by Jane Zhu and colleagues that focused on exchange-marketplace plans found “structural barriers” to behavioral healthcare because approximately half of all plans featured behavioral health “narrow networks:” networks where fewer than 25% of providers are “in- network.”149 The ACA’s EHB requirement may not be an absolute guarantee of afordable mental health services. Nevertheless, it does require some services and may deliver better than that in competitive marketplaces. Unfortunately, the Trump Administration has taken issue with EHBs, increasing state discretion in their benchmarking.150 Further, the Administration’s Short-Term, Limited-Duration Insurance and AHPs online will feature deprecated EHBs.151 Thus, at a time when persons sufering from OUD desperately need coverage for behavioral health services, the Administration is actively promoting “skimpy” policies that frequently will not include coverage for mental health, substance use, or OUD-appropriate prescriptions drugs. The stratifcation of health insurance may (for good reason) seem arcane, and its connection to OUD treatment somewhat remote. However, comprehending stratifcation helps us understand why there is no one solution to improving opioids treatment interventions. Rather, each stratum requires separately tailored improvements in the applicable insurance model because those in diferent strata face diferent barriers.152 For a start, there are those who remain uninsured. These include undocumented persons, those
148 Id. at 2. 149 Jane M. Zhu et al., Networks in ACA Marketplaces are Narrower for Mental Health Care Than for Primary Care, 36 Health Affairs 1624, 1626 (2017). 150 Patient Protection and Afordable Care Act; HHS Notice of Beneft and Payment Parameters for 2019, 83 Fed. Reg. 16930 (Apr. 17, 2018). 151 John Arensmeyer, Association Health Plans Will Destabilize Small Group Market, Small Bus. Majority (June 19, 2018), http://smallbusinessmajority.org/ press-release/association-health-plans-will-destabilize-small-group-market. See generally Karen Pollitz et al., Understanding Short-Term Limited Duration Health Insurance, Kaiser Fam. Found. (Apr. 23, 2018), https://www.kf. org/health-reform/issue-brief/understanding-short-term-limited-duration- health-insurance/. 152 See generally Kathleen Rowan et al., Access and Cost Barriers to Mental Health Care, by Insurance Status, 1999-2010, 32 Health Aff. 1723 (2013). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 343 who fall within the Medicaid expansion gap (100% FPL to 138% FPL) in non-expansion states, and those with income <400% FPL who, without tax credits, cannot aford a marketplace plan or could not use one absent cost-sharing subsidies. Then, and more fully described in the next section, are those who should beneft from Medicaid or expanded Medicaid but who either are unaware of the coverage, cannot meet the program’s administrative requirements, or (increasingly) fall afoul of new eligibility hurdles such as paperwork or premium requirements.153 Stratifcation based on income was intended to mitigate the impact of poverty on access to healthcare. In actuality, it perpetuates classism and health disparities by shufing persons into diferent healthcare systems with diferent coverages, expectations, and realities. As stressors like the opioids epidemic vividly demonstrate, a stratifed system is a poor alternative to a single payer, universal care model.
C. Medicaid’s Devolution from Solution to Potential Problem It is difcult to overestimate Medicaid’s potential for alleviating the opioid crisis. Approximately 12% of the adult Medicaid population sufers from a SUD,154 Medicaid covers nearly 40% of nonelderly adults with OUD,155 and overall, the program funds more than 20% of all addiction treatment.156 Additionally, Medicaid ofers opportunities for innovation and states have considerable leeway to adopt the kinds of treatments and services urgently needed by those sufering from OUD.157 States can open up such opportunities
153 See discussion infra Section C.1. 154 Medicaid Works for People with Substance Use Disorders, Ctr. on Budget & Policy Priorities (Jan. 19, 2018), https://www.cbpp.org/research/ health/medicaid-works-for-people-with-substance-use-disorders. 155 Nonelderly Adults with Opioid Addiction Covered by Medicaid Were Twice as Likely as Those with Private Insurance or the Uninsured to Have Received Treatment in 2016, Kaiser Fam. Found. (Apr. 12, 2018), https://www.kf.org/medicaid/press- release/nonelderly-adults-with-opioid-addiction-covered-by-medicaid-were- twice-as-likely-as-those-with-private-insurance-or-the-uninsured-to-have- received-treatment-in-2016/. 156 Julia Zur & Jennifer Tolbert, The Opioid Epidemic and Medicaid’s Role in Facilitating Access to Treatment, Kaiser Fam. Found. (Apr. 11, 2018), http://fles.kf. org/attachment/Issue-Brief-The-Opioid-Epidemic-and-Medicaids-Role-in- Facilitating-Access-to-Treatment. 157 U.S. Dep’t of Health & Human Servs., Facing Addiction in America: The Surgeon General’s Report on Alcohol, Drugs, and Health 6-35 to 6-38 (2016), https://addiction.surgeongeneral.gov/ 344 Terry by applying to the Secretary for a Section 1115 Medicaid waiver to use federal funds for additional services.158 Indeed, states that have not expanded Medicaid have generally seen their percentage of uninsured persons increase.159 Persistent insurance coverage such as that provided by Medicaid expansion has proven very positive in improving the management of other chronic diseases.160 As noted in the Surgeon General’s report, “Medicaid expansion is a key lever for expanding access to substance use treatment because many of the most vulnerable individuals with substance use disorders have incomes below 138% of the federal poverty level.”161 Indeed, after Kentucky expanded Medicaid, it experienced a 700% increase in the utilization of substance use services.162 Medicaid was recognized as a key vehicle to increase the health of near-poor adults even before the expansion of behavioral health services by the MHPAEA and, subsequently, the ACA. From 2001, the Bush Administration’s Health Insurance Flexibility and Accountability initiative encouraged states to request Section 1115 waivers in an attempt to provide coverage (albeit constrained by budget neutrality) to persons <200% FPL.163 Originally, even before the ACA, Section 1115 demonstration projects often were used to reduce stratifcation.164 The ACA itself
sites/default/fles/surgeon-generals-report.pdf. 158 42 U.S.C. § 1315 (2018) (originally enacted by the Social Security Act of 1962, the waiver provision even predated Medicaid). 159 Jennifer Haley et al., Adults’ Uninsurance Rates Increased by 2018, Especially in States That Did Not Expand Medicaid, Health Aff. Blog (Sept. 26, 2018), https://www.healthafairs.org/do/10.1377/hblog20180924.928969/full/. 160 See, e.g., Rebecca Myerson et al., Medicaid Eligibility Expansions May Address Gaps in Access to Diabetes Medications, 37 Health Aff. 1200 (2018). 161 U.S. Dep’t of Health & Human Servs., supra note 68, at 6–7. 162 Substance Use and the ACA in Kentucky, Found. for a Healthy Ky. 7, 7 (2016), https://www.healthy-ky.org/res/images/resources/Full-Substance- Use-Brief-Final_12_16-002-.pdf. 163 See generally Hefei Wen et al., Efect of Medicaid Expansions on Health Insurance Coverage and Access to Care among Low Income Adults with Behavioral Health Conditions, 50 Health Servs. Res. 1787 (2015). 164 Nat’l Conference of State Legislatures, Understanding Medicaid Section 1115 Waivers: A Primer for State Legislators 4 (2017), http://www.ncsl.org/Portals/1/Documents/Health/Medicaid_ Waivers_State_31797.pdf; The Kaiser Comm’n on Medicaid and the Uninsured, A Look at Section 1115 Medicaid Demonstration Waivers Under the ACA: A Focus on Childless Adults 4 (2013), https://kaiserfamilyfoundation.fles.wordpress.com/2013/10/8499-a-look- VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 345 signaled considerable interest in that model by permitting more ambitious projects under an additional waiver process.165 Overall, Section 1115 waivers could help in implementing state innovations in behavioral health such as suspending the Institutions for Mental Diseases exclusion,166 reimbursing care coordination, or paying for services that address health-related social needs such as supportive housing, transportation, and food.167
1. Regressive Trends in Section 1115 Waivers During the Obama Administration, the waiver process continued much as before until Medicaid expansion stalled because states with conservative administrations declined to opt- in to expansion.168 The Administration then took a detour from traditionally approved waivers and began approving requests that appealed to generally-held conservative views on health policy. In particular, the Administration allowed waivers that required enrollees to have some “skin in the game;”169 for example, by paying small premiums, contributing to health savings accounts, or requiring healthy/wellness behaviors. At least two objections can be levelled at these Obama-era waivers. First, there are serious doubts about the efectiveness
at-section-1115-medicaid-demonstration-waivers.pdf; see, e.g., Background on Oregon’s 1115 Medicaid Demonstration Waiver, Or. Health Auth., https:// www.oregon.gov/oha/HSD/Medicaid-Policy/Pages/Background.aspx (last visited Dec. 18, 2018). 165 See Patient Protection and Afordable Care Act § 1332, 42 U.S.C. § 18052 (2018). 166 Social Security Act § 1905(a)(B), 42 U.S.C. § 1396(d) (2018) (prohibiting Medicaid fnancing for behavioral care provided in residential treatment facilities with more than 16 beds); see discussion infra notes 215–18. 167 See Nat’l Ass’n of Medicaid Dir., Medicaid Section 1115 Waiver Trends in an Era of State Flexibility (2018), http://medicaiddirectors. org/wp-content/uploads/2018/03/Section-1115-Waiver-Trends-NAMD- Whitepaper-1.pdf. 168 See generally Where the States Stand on Medicaid Expansion, Advisory Bd. (June 8, 2018), https://www.advisory.com/daily-briefng/resources/primers/ medicaidmap; Sara Rosenbaum, The Trump Administration Re-Imagines Section 1115 Medicaid Demonstrations – and Medicaid, Health Aff. Blog, (Nov. 9, 2017), https://www.healthafairs.org/do/10.1377/hblog20171109.297738/ full/. 169 See Seema Verma & Brian Neale, Health Indiana 2.0 is Challenging Medicaid Norms, Health Aff. Blog (Aug. 29, 2016), https://www.healthafairs.org/ do/10.1377/hblog20160829.056228/full/. 346 Terry of “skin-in-the-game” and wellness initiatives.170 Second, some of the approved provisions were likely to decrease enrollment or service utilization. Because this was a likely result, the Obama Administration likely considered these to be worthy trade-ofs in order to make headway in states reticent to expand Medicaid. Equally, conservative-led states could expand Medicaid with a modicum of political cover; what Abbe Gluck and Nicole Huberfeld call the “secret boyfriend model” of federalism.171 An example of a “skin-in-the-game” waiver is found in Indiana’s “Healthy Indiana Plan 2.0.”172 Under this waiver, Medicaid benefts were tiered; the higher tier included vision and dental coverage and did not impose a co-pay for most services.173 To qualify for this higher tier, otherwise-eligible persons had to contribute to a health savings account. Failure to make contributions (or never signing up) had a diferential impact depending whether the otherwise-eligible person was in the traditional Medicaid or expanded cohort. In broad terms, failure to contribute would move those at 100% FPL or below to the lower benefts tier, while those in the expanded >138% FPL cohort would not receive those additional benefts, or if they stopped paying would be locked out of benefts for a period of time.174 Analysis of HIP 2.0 has shown that 55% of those eligible to pay premiums failed to do so, either dropping down to the lower benefts tier (< 101% FPL) or never being enrolled or losing coverage (>100% FPL).175 “The top two reasons cited by people who never enrolled in or lost HIP 2.0 coverage were afordability
170 See generally Jane B. Wishner et al., The Urban Inst., Medicaid Expansion, the Private Option, and Personal Responsibility Requirements (2015), https://www.urban.org/sites/default/fles/ publication/53236/2000235-Medicaid-Expansion-The-Private-Option-and- Personal-Responsibility-Requirements.pdf. 171 Abbe R. Gluck & Nicole Huberfeld, What is Federalism in Healthcare for?, 70 Stan. L. Rev. 1689, 1767 (2018). 172 Letter from Marilyn Tavenner, Dep’t of Health & Human Serv., to Joseph Moser, Medicaid Dir. for Ind. Family and Soc. Serv. Admin. (Jan. 27, 2015), https:// www.in.gov/fssa/hip/fles/IN _HIP_2.0_CMS_Approval_Ltr_1_27_15.pdf. 173 Robin Rudowitz et al., Kaiser Fam. Found., Digging Into the Data: What Can We Learn from the State Evaluation of Healthy Indiana (HIP 2.0) Premiums 3 (2018), http://fles.kf.org/ attachment/Issue-Brief-Digging-Into-the-Data-What-Can-We-Learn-from- the-State-Evaluation-of-Healthy-Indiana-HIP-20-Premiums. 174 Id. at 2. 175 Id. at 3. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 347 and confusion about the payment process.”176 Overall, the results from these Obama-era waiver approvals undoubtedly show net gains in the number of covered persons.177 However, the picture seems cloudier with regard to the behavioral health cohort. The Indiana Medicaid population is approximately 1.3 million.178 Approximately 100,000 (or 7%) sufer from SUD, although under-reporting makes it likely that the number is roughly twice that (or 14%).179 It seems arguable that programs that lead with paperwork and not treatment will have a disproportionately negative impact on those needing behavioral health services. Either Medicaid eligibility paperwork will not be completed or the staf in emergency rooms or other treatment situations will fnd themselves pausing from their clinical responsibilities to help fll in forms. Clearly, the Trump Administration is doubling down on the approach to Section 1115 waivers taken by the Obama Administration. First, it is approving draconian provisions, such as work requirements, that the prior administration rejected.180 Second, while the Obama Administration used Section 1115 waivers as a carrot ofered to states vacillating over expansion, the Trump Administration is using the waiver process to reform traditional Medicaid.181 There is, therefore, more going on here than simply
176 Id. at 4. 177 See, e.g., Seth Freedman et al., Learning from Waiver States: Coverage Efects Under Indiana’s HIP Medicaid Expansion, 37 Health Aff. 936, 939–40 (2018). 178 See Medicaid in Indiana, Kaiser Family Found. (Nov. 2018), http://fles. kf.org/attachment/fact-sheet-medicaid-state-IN (providing the statistic that 20% of Indiana’s population is on Medicaid, which is approximately 1.3 million). 179 Nicolas P. Terry et al., Legal and Policy Best Practices in Response to the Substance Abuse Crisis 32 (2018), https:// grandchallenges.iu.edu/doc/iu-grand-challenges-legal-and-policy-best- practices.pdf. 180 See, e.g., Michael Ollove, Should Medicaid Recipients Have to Work?, PEW (Sept. 30, 2015), https://www.pewtrusts.org/en/research-and-analysis/blogs/ stateline/2015/09/30/should-medicaid-recipients-have-to-work; Mattie Quinn, On Medicaid, States Won’t Take Feds’ No for an Answer, Governing (Oct. 11, 2016), http://www.governing.com/topics/health-human-services/ gov-medicaid-waivers-arizona-ohio-cms.html; Sara Rosenbaum, The Trump Administration Re-Imagines Section 1115 Medicaid Demonstrations – and Medicaid, Health Aff. Blog (Nov. 9, 2017), https://www.healthafairs.org/ do/10.1377/hblog20171109.297738/full/. 181 MaryBeth Musumeci et al., Section 1115 Medicaid Demonstration Waivers 3–5 (2018), http://fles.kf.org/attachment/Issue-Brief-Section- 1115-Medicaid-Demonstration-Waivers-The-Current-Landscape-of- 348 Terry approving more conservative waivers or providing political cover for the most conservative states to expand Medicaid. Rather, it indicates a major shift in philosophy regarding Medicaid. In 2017, this was laid bare in just the third paragraph of a letter to the country’s governors from then-HHS Secretary Tom Price and CMS Administrator Seema Verma (hereinafter the “Price-Verma letter”). Whether conscious or not of their historical revisionism, they wrote, “[t]he expansion of Medicaid through the [ACA] to non- disabled, working-age adults without dependent children was a clear departure from the core, historical mission of the program.”182 It was in this letter that the new Administration also announced its belief that “[t]he best way to improve the long-term health of low-income Americans is to empower them with skills and employment.”183 In January 2018, then-CMS Director Brian Neale provided more details in a letter to state Medicaid directors (hereinafter the “Neale letter”).184 Predictably, states with conservative leadership applied for new waivers or added work requirements to requests for renewal of existing waivers—that cohort exemplifed by Indiana, Kentucky, and Ohio, states that have been hit particularly hard by the opioid epidemic.185 Both the Price-Verma and the Neale letters refected on
Approved-and-Pending-Waivers. 182 Letter from Thomas E. Price, Sec’y, U.S. Dep’t of Health & Human Servs., and Seema Verma, Adm’r, Ctrs. for Medicare & Medicaid Servs., to U.S. State Governors 1 (March 14, 2017), https://www.hhs.gov/sites/ default/fles/sec-price-admin-verma-ltr.pdf [hereinafter Price-Verma Letter]. 183 Id. 184 Letter from Brian Neale, Medicaid Deputy Adm’r & Dir., Ctrs. for Medicare & Medicaid Servs., to State Medicaid Dirs. (Jan. 11, 2018), https://www. medicaid.gov/federal-policy-guidance/downloads/smd18002.pdf; see also Marian Jarlenski et al., Shaping Health Policy for Low-Income Populations: An Assessment of Public Comments in a New Medicaid Waiver Process, 42 J. Health Pol., Pol’y, & L. 1039, 1047 (2017) (examining whether the comment letters used the rhetoric of “personal responsibility,” “consumer choice,” or “consumer-driven care” rather than “vulnerable populations”). 185 Indiana Opioid Summary, Nat’l Inst. on Drug Abuse (Feb. 2018), https:// www.drugabuse.gov/drugs-abuse/opioids/opioid-summaries-by-state/ indiana-opioid-summary; Billy Wynne & Taylor Cowey, State Waivers as a National Policy Lever, Health Aff. Blog (Feb. 6, 2018), https://www. healthafairs.org/do/10.1377/hblog20180202.543483/full/; see, e.g., Kyle Fee, The Opioid Epidemic and Its Efects, Fed. Res. Bank Cleveland (May 31, 2018), https://www.clevelandfed.org/newsroom-and-events/publications/ community-development-briefs/db-20180531-the-opioid-epidemic.aspx; see Where the States Stand on Medicaid Expansion, Advisory Board (Nov. 5, 2018, VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 349 the opioid epidemic. While the former included language pledging CMS’s cooperation with the states to provide a “full continuum of care,”186 the Neale letter included a promise of carve-outs from the work requirements for those with SUD. These included required respect for civil rights protections and “counting time spent in medical treatment towards an individual’s work/community engagement requirements.”187 However, whether compliance with the Americans with Disabilities Act (“ADA”),188 and some requirement that states use some kind of “medical frailty” safe harbor, 189 will be sufcient protections for those with OUD remains an open question. Again, to use Indiana’s Medicaid as an example, the state’s 2018 waiver extension includes additional potential barriers to Medicaid enrollment. For example, the extension approves a tobacco surcharge, a work requirement (beginning in 2019), and more process requirements.190 Persons with OUD likely will have difculty meeting the accompanying administrative requirements. Many may be transients whose qualifying paperwork fails to reach them,191 and others cycle in and out of relapse,192 making regular
12:51 PM), https://www.advisory.com/daily-briefng/resources/primers/ medicaidmap. 186 Price-Verma Letter, supra note 182, at 3. 187 Letter from Brian Neale, supra note 184, at 6. 188 Title II of the ADA protects qualifed individuals with disabilities from discrimination on the basis of disability from services, programs, or activities provided by state and local government entities. A person with OUD may be a “qualifed individual with a disability.” 28 C.F.R. § 35.130 (2018). 189 MaryBeth Musumeci et al., Approved Changes in Indiana’s Section 1115 Medicaid Waiver Extension 5 (2018), http://fles.kf. org/attachment/Issue-Brief-Approved-Changes-in-Indianas-Section-1115- Medicaid-Waiver-Extension. 190 Letter from Demetrios Kouzoukas, Principal Deputy Adm’r, Ctrs. for Medicare & Medicaid Servs., to Allison Taylor, Medicaid Dir., Indiana Family & Soc. Servs. Admin. (Feb. 1, 2018), https://www.medicaid.gov/ Medicaid-CHIP-Program-Information/By-Topics/Waivers/1115/downloads /in/Healthy-Indiana-Plan-2/in-healthy-indiana-plan-support-20-ca.pdf. See generally Musumeci et al., supra note 189, at 1. 191 Suzanne Wikle, Medicaid Works: No Work Requirement Necessary 6 (2018), https://www.clasp.org/sites/default/fles/ Medicaid%20Works-No%20Work%20Requirement%20Necessary%20 updated%20December%202018%20fnal.pdf; see also Lydia Coutré, Ohio Hospitals Battle Proposed Medicaid Work Requirements, Modern Healthcare (Apr. 30, 2018), https://www.modernhealthcare.com/article/20180430/ NEWS/180439992. 192 NIH NIDA actually defnes drug abuse and addiction as a “relapsing brain disease.” See The Science of Drug Use and Addiction, Nat’l Inst. on Drug 350 Terry employment problematic. The new program will be subject to the ADA, containing a SUD-exception from the work requirement, and a medical frailty care exception to lockout.193 However, it is unclear how these will operate and precisely how substantiation burdens will fall on those with SUD. It is at least arguable that these additional requirements will increase the barriers to healthcare among the poor and near-poor in Indiana, and disproportionately impact persons with OUD.194 While the proportion of those with SUD or OUD is not broken out, new fgures from Arkansas, which has imposed an 80-hour-per-month work requirement, suggest that thousands of persons are at risk of being dropped from the state’s Medicaid program.195 If the worst-case scenario plays out with those needing behavioral health services excluded because of a politically- motivated work requirement, the irony will be cruel. Expanding Medicaid should be one of the most efective interventions in the OUD epidemic, extending healthcare to a particularly hard-hit demographic. However, the price for that intervention, a Medicaid expansion “tax,” may create new barriers to eligibility for large numbers in the very cohort that needs help. These waivers or waiver extensions are adding increased premiums, work requirements, documentation burdens, and requirements that recipients log onto state computer systems to report employment details; failure to comply with even the minutest requirements leads to lockouts.196
Abuse (July 2018), https://www.drugabuse.gov/publications/media-guide/ science-drug-use-addiction-basics. 193 Musumeci et al., supra note 189, at 4, 8. 194 Hannah Katch et al., Taking Medicaid Coverage Away from People Not Meeting Work Requirements Will Reduce Low- Income Families’ Access to Care and Worsen Health Outcomes (2018), https://www.cbpp.org/sites/default/fles/atoms/fles/2-8-18health2. pdf. 195 Erin Brantley & Leighton Ku, Arkansas’s Early Experience with Work Requirements Signals Larger Losses to Come, The Commonwealth Fund: To the Point (Oct. 31, 2018), https://www.commonwealthfund.org/blog/2018/arkansas- early-experience-work-requirements; Jessie Hellmann, Arkansas Medicaid Work Requirements Could Cost Thousands Coverage, Data Show, The Hill (Aug. 15, 2018), https://thehill.com/policy/healthcare/401975-new-data-shows- arkansass-medicaid-work-requirements-could-cost-thousands; see also Jessica Greene, Medicaid Recipients’ Early Experience with the Arkansas Medicaid Work Requirement, Health Aff. Blog (Sept. 5, 2018), https://www.healthafairs. org/do/10.1377/hblog20180904.979085/full/. 196 See generally Musumeci et al., supra note 189. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 351
There is particular potential for additional “churn” as those with OUD drop in and out of these programs with complex administrative or work requirements.197 It is at least arguable that those types of conditions for eligibility would disproportionally harm those with OUD. Many with OUD will likely be unable to handle the administrative burdens and simply walk away. Re-architecting the Medicaid program around employment is fawed on a number of fronts. First, the policy shift likely is not worth the administrative costs; only a very small number of Medicaid eligible persons who could work choose not to.198 Sixty percent work and most of those who don’t are disabled, caregivers, or in school.199 Only seven percent would qualify as not-working and there are many reasons, including lack of jobs in a particular locale, which could explain some of that number.200 Second, the CMS explanation for a work requirement is based on some twisted logic. While it is true that those who are employed generally have better health, it is false to conclude that making people work will increase their health. As Douglas Jacobs observes, “it could just as easily be that poor health causes unemployment” while research suggests “that having Medicaid made it easier to look for a job.”201 At present, the impact of imposing work requirements is uncertain. Some programs do not begin until 2019 and the legality of the waivers is under attack. For example, in Stewart v. Azar, Medicaid enrollees challenged the section 1115 waiver CMS granted to Kentucky HEALTH which included a work requirement, premiums, additional cost-sharing, and a coverage lockout for failure
197 Rachel Garfield et al., Implications of Work Requirements in Medicaid 5 (2018), http://fles.kf.org/attachment/Issue-Brief- Implications-of-Work-Requirements-in-Medicaid-What-Does-the-Data- Say; see also Letter from Demetrios Kouzoukas, supra note 190. See generally Musumeci et al., supra note 189. 198 MaryBeth Musumeci et al., Medicaid and Work Requirements (2018), http://fles.kf.org/attachment/Issue-Brief-Medicaid-and-Work- Requirements-New-Guidance-State-Waiver-Details-and-Key-Issues. 199 Id. 200 Id. 201 Douglas Jacobs, The Social Determinants Speak: Medicaid Work Requirements Will Worsen Health, Health Aff. Blog (Aug. 6, 2018), https://www.healthafairs. org/do/10.1377/hblog20180730.371424/full/; see also Larisa Antonisse & Rachel Garfield, The Relationship Between Work and Health (2018), http://fles.kf.org/attachment/Issue-Brief-The-Relationship- Between-Work-and-Health-Findings-from-a-Literature%20Review. 352 Terry to promptly renew.202 Kentucky itself admitted that almost 100,000 Kentuckians would lose coverage. 203 In June 2018, the federal district court decided that the Secretary’s waiver decision was arbitrary and capricious because he failed to consider the impact of the waiver policies on insuring people (Medicaid’s primary purpose) given the estimate of how many would lose coverage.204 Undoubtedly, neither the litigation nor the question of obstructive Medicaid restrictions are over, and reports suggest that CMS is not inclined to change its new embrace of work requirements.205 On a brighter note, there are indications that an increasing number of non-expansion states are now leaning toward expansion206 and, as a result, a net increase in the number of insureds. However, it is unclear how many of these recent converts to expansion will have to adopt draconian conditions to cement the transition.207 Nor, as already discussed, is it clear whether those “skin-in-the-game” policies and work requirements will disproportionally impact those needing behavioral health services.
2. Medicaid Reimbursement for Behavioral Health Services For those needing behavioral health services the stakes are high. Those covered by Medicaid are twice as likely as those who are uninsured or have private insurance to receive treatment for OUD and almost three times more likely to have received outpatient treatment.208 Overall, Medicaid provides access to more
202 Stewart v. Azar, 313 F. Supp. 3d 237, 248 (D.D.C. 2018). 203 Id. at 263. 204 Id. at 259–62; see MaryBeth Musumeci, Explaining Stewart v. Azar (2018), http://fles.kf.org/attachment/Issue-Brief-Explaining-Stewart-v- Azar-Implications-of-the-Courts-Decision-on-Kentuckys-Medicaid-Waiver. 205 See Dan Diamond & Rachana Pradhan, CMS Plots Path Forward for Kentucky Work Requirements After Court Setback, Politico (July 18, 2018), https://www. politico.com/story/2018/07/18/kentucky-medicaid-work-requirements-cms- court-setback-694575. 206 Donald Moulds et al., A New Group of States Looks to Expand Medicaid, The Commonwealth Fund: To the Point (Aug. 27, 2018), https://www. commonwealthfund.org/blog/2018/states-look-expand-medicaid. 207 See generally id. 208 Julia Zur & Jennifer Tolbert, The Opioid Epidemic and Medicaid’s Role in Facilitating Access to Treatment, The Henry J. Kaiser Fam. Found. (Apr. 11, 2018), https://www.kff.org/medicaid/issue-brief/the-opioid-epidemic-and- medicaids-role-in-facilitating-access-to-treatment/. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 353 comprehensive behavioral health services than marketplace plans.209 However, while states generally are obliged to provide such services writ large, not all states provide robust services.210 Three variables are at work here: frst, the extent to which a state provides diferent modes of treatment; second, the levels of care that are available; and third, the extent to which an individual state has taken advantage of additional coverages (for example, Health Homes) or requested waivers under Section 1115 to address issues that go beyond mainstream clinical care (for example, wraparound services). While Medicaid (courtesy of the MHPAEA and ACA) requires states to include reimbursement for substance use treatment, it did not require all three forms of MAT until the 2018 opioid legislation.211 While a majority of states do require such reimbursements, many still do not, the omission frequently being methadone-based treatment, which is absent from numerous state plans.212 Medicaid has approved the ASAM guidelines providing the appropriate levels of care.213 However, yet again, there are considerable state-by-state disparities in the availability of these levels of care under Medicaid. Particular defciencies are identifed in levels 3 (residential inpatient services) and 4 (intensive inpatient
209 Medicaid Works for People with Substance Use Disorders, Ctr. on Budget & Pol’y Priorities (Jan. 19, 2018), https://www.cbpp.org/research/health/ medicaid-works-for-people-with-substance-use-disorders. 210 See id. 211 See Medicaid Innovation Accelerator Program, Overview of Substance Use Disorder (SUD) Care Clinical Guidelines: A Resource for States Developing SUD Delivery System Reforms 1 (2017), https://www.medicaid.gov/state-resource-center/innovation- accelerator-program/iap-downloads/reducing-substance-use-disorders/ asam-resource-guide.pdf; see also Insurance and Payments, Substance Abuse & Mental Health Serv. Admin., https://www.samhsa.gov/medication- assisted-treatment/treatment/insurance-payments (last updated Sept. 28, 2015); SUPPORT for Patients and Communities Act, Pub. L. No. 115-271, § 2001 (2018). 212 Colleen M. Grogan et al., Survey Highlights Diferences in Medicaid Coverage for Substance Use Treatment and Opioid Use Disorder Medications, 25 Health Aff. 2289, 2292 (2016); States Reporting Medicaid Coverage of Medication Assisted Treatment (MAT) Drugs, The Henry J. Kaiser Fam. Found., https://www. kff.org/medicaid/state-indicator/states-reporting-medicaid-coverage-of- medication-assisted-treatment-mat-drugs/ (last visited Dec. 14, 2018). 213 See Letter from Vikki Wachino, Dir., Ctrs. for Medicare & Medicaid Servs., to State Medicaid Dirs. 7 (July 27, 2015), https://www.medicaid.gov/federal- policy-guidance/downloads/SMD15003.pdf; see also Medicaid Innovation Accelerator Program, supra note 211, at 2–3. 354 Terry services), along with other state-by-state variations such as pre- authorization requirements and coverage limitations.214 The relative lack of level 3 residential inpatient care is to a large extent because of what is known as the Institutions for Mental Disease (“IMD”) exclusion that applies to reimbursement for adults aged 21–64.215 As should be obvious from its name, the IMD exclusion is a relic from the past, prior to the integration of behavioral health services with general medical care. IMDs are hospitals or treatment facilities that have more than 16 beds and that primarily provide mental health or substance use care.216 Increasingly, CMS seems willing to approve Section 1115 waivers to the IMD prohibition and allow Medicaid reimbursement217 while recent federal opioid legislation brought about the exclusion’s suspension but not its ultimate demise.218 Section 1115 waivers are the one part of the third aspect of Medicaid treatment; the potential to reimburse for and so unlock expanded behavioral health services. The other key route for states is to adopt “state plan amendments.” One of these, included in the ACA,219 is the Medicaid “health home” that provides time-limited federal funding for creating “homes” for benefciaries that provide case management, care coordination, and other services that would be of particular utility when dealing with those requiring behavioral health services. Approximately 15 states have adopted some form of this model.220 In contrast, Section 1115 waiver applications are being adopted broadly to increase reimbursable behavioral health
214 Grogan et al., supra note 212, at 2292. 215 42 U.S.C. § 1396d(a)(29)(B) (2018). 216 See generally MaryBeth Musumeci, Key Questions about Medicaid Payment for Services in “Institutions for Mental Disease,” The Henry J. Kaiser Fam. Found. (June 18, 2018), https://www.kf.org/medicaid/issue-brief/key-questions- about-medicaid-payment-for-services-in-institutions-for-mental-disease/. 217 See Letter from Brian Neale, Dir., Ctrs. for Medicare & Medicaid Servs., to State Medicaid Dirs. 2 (Nov. 1, 2017), https://www.thenationalcouncil.org/ wp-content/uploads/2017/11/smd-17-003.pdf. 218 SUPPORT for Patients and Communities Act, Pub. L. No. 115-271, §§ 1012- 13, 5052, 132 Stat. 3894, 69-70 (2018). 219 See 42 U.S.C. § 256a-1 et seq. (2018). 220 Kathy Moses & Brianna Ensslin, Ctr. for Health Care Strategies, Seizing the Opportunity: Early Medicaid Health Home Lessons 1 (2014). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 355 services.221 This route has been encouraged by both the Obama222 and Trump Administrations.223 In addition to IMD waivers (the most popular), a large number of states have applied for waivers to expand community-based services (such as supportive housing or peer coaching), increase the eligible cohort, or fnance delivery system reforms (such as integrating services).224 However, these demonstration projects must be budget neutral,225 which likely creates difcult decisions for states as they increase their behavioral health services (for example, calibrating the appropriate balance of spending on institutional versus community-based care). As Jonathan Oberlander has commented, “[t]he ACA is stuck in purgatory, beyond comprehensive repeal but subject to a war of attrition that jeopardizes its gains.”226 Medicaid expansion, a major component in improving behavioral health services, continues to be under threat, potentially leading to the loss of some or all insurance for hundreds of thousands of persons with behavioral health issues.227 The worst case scenario is that even traditional Medicaid may be cut back if reformers succeed in moving “welfare” programs to a block grant model.228
221 MaryBeth Musumeci et al., Section 1115 Medicaid Demonstration Waivers: The Current Landscape of Approved and Pending Waivers, The Henry J. Kaiser Fam. Found. (Sept. 20, 2018), https://www.kf.org/medicaid/issue-brief/key- questions-about-medicaid-payment-for-services-in-institutions-for-mental- disease/. 222 See Letter from Vikki Wachino to State Medicaid Dirs., supra note 213, at 4 (replaced by Nov. 1, 2017 letter below). 223 See Letter from Brian Neale to State Medicaid Dirs., supra note 217, at 1. 224 MaryBeth Musumeci, The Henry J. Kaiser Family Found., Key Themes in Medicaid Section 1115 Behavioral Health Waivers 2 (2017). 225 Letter from Timothy B. Hill, Acting Dir., Ctrs. for Medicare & Medicaid Servs., to State Medicaid Dirs. 1–2 (Aug. 22, 2018), https://www.medicaid.gov/ federal-policy-guidance/downloads/smd18009.pdf. 226 Jonathan Oberlander, The Republican War on Obamacare — What Has It Achieved?, 379 New Eng. J. Med. 703, 705 (2018). 227 Peggy Bailey, ACA Repeal Would Jeopardize Treatment for Millions with Substance Use Disorders, Including Opioid Addiction, Ctr. on Budget & Pol’y Priorities (Feb. 9, 2017), https://www.cbpp.org/research/health/aca-repeal-would- jeopardize-treatment-for-millions-with-substance-use-disorders; Richard G. Frank & Sherry A. Glied, Keep Obamacare to Keep Progress on Treating Opioid Disorders and Mental Illnesses, The Hill (Jan. 11, 2017), http://thehill.com/ blogs/pundits-blog/healthcare/313672-keep-obamacare-to-keep-progress- on-treating-opioid-disorders. 228 See Aaron E. Carroll, How Would Republican Plans for Medicaid Block Grants Actually Work?, N.Y. Times (Feb. 6, 2017), https://www.nytimes.com/2017/02/06/ 356 Terry
Assuming the survival of Medicaid and expanded Medicaid, the practical challenge will be to minimize the impact of “skin-in- the-game” work requirements and increased administrative burdens that will disproportionally have a negative impact on those needing behavioral health services. Philosophically and politically, the greater challenge will be to reverse the current Administration’s “welfare” labelling of these important programs. As Sara Rosenbaum noted regarding the Price-Verma letter’s rollout of work requirements and the Administration’s new objectives, “[i]n all of this there is absolutely no mention of Medicaid as insurance.”229
D. Diferential Architectures, Fragmentation, and a Paucity of Wraparound Services From the early days of addiction science, those with SUD were viewed as “morally fawed and lacking in willpower . . . which led to an emphasis on punishment rather than prevention and treatment.”230 Not surprisingly, behavioral and non-behavioral health services developed with diferential architectures implicating, inter alia, treatment models, places for care, and data sharing. Deinstitutionalization began decades ago while, more recently, the MHPAEA and the ACA strengthened the integration or mainstreaming of treatments for substance use disorder and mental illness. However, in yet another example of path dependency, the practices and structures of the past haunt the present. The stigma surrounding SUD and mental illness remains as an intermediary determinant of health for those with OUD, while access and treatment diferentials play out as structural determinants because patients and providers struggle with fragmentation and lack of care coordination. These faws in the provision of behavioral healthcare services are amplifed by fragmentation problems in healthcare generally and the lack of investment in case management, care coordination, and wraparound services by both healthcare and social welfare services.
upshot/how-would-republican-plans-for-medicaid-block-grants-actually- work.html. 229 Sara Rosenbaum, The Trump Administration Re-Imagines Section 1115 Medicaid Demonstrations – And Medicaid, Health Affairs (Nov. 9, 2017), https:// www.healthafairs.org/do/10.1377/hblog20171109.297738/full/. 230 Nat’l Inst. on Drug Abuse, Drugs, Brains, and Behavior: The Science of Addiction 2 (2018), https://www.drugabuse.gov/ publications/drugs-brains-behavior-science-addiction/preface. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 357
To a large extent, lack of care coordination or fragmentation of care are defning features of the U.S. healthcare system.231 The need for improved coordination frequently has been cited by organizations such as the National Academies of Science,232 the Agency for Healthcare Research and Quality,233 and the National Quality Forum.234 Successful care coordination has several key pillars, including “access to a range of health care services and providers,” efective communications and care plan transitions (hand-ofs) between providers, a focus on the patient’s needs, the communication of “clear and simple information that patients can understand,”235 and the efective use of health information technologies.236 Demonstration projects have identifed cost-savings in the Medicaid program from the use of care coordination interventions for those with chronic conditions.237
1. Fragmentation and the Continuum of Care for Those with OUD It is broadly recognized that many of the care coordination issues that present in the OUD context follow from the historic segregation of substance use diagnosis and treatment from mainstream healthcare delivery, with the former frequently thought of as social or criminal justice issues that should be dealt with by psychiatric hospitals or prisons.238 As we now recognize, persons
231 See, e.g., Families USA, The Promise of Care Coordination: Transforming Health Care Delivery 3 (2013). 232 See, e.g., The Nat’l Acads. of Scis., Improving Diagnosis in Health Care 6–9 (2015). 233 Care Coordination, Agency for Healthcare Res. & Quality, https://www. ahrq.gov/professionals/prevention-chronic-care/improve/coordination/ index.html (last visited Dec. 14, 2018). 234 Care Coordination Measures, Nat’l Quality Forum, http://www.qualityforum. org/ProjectDescription.aspx?projectID=73700 (last visited Dec. 14, 2018). 235 What Is Care Coordination?, NEJM Catalyst (Jan. 1, 2017), https://catalyst. nejm.org/what-is-care-coordination/. 236 Improved Care Coordination: The Need for Better Improved Care Coordination, HealthIT.gov, https://www.healthit.gov/providers-professionals/ improved-care-coordination (last visited Dec. 14, 2018). 237 See, e.g., Jingping Xing et al. Care Coordination Program for Washington State Medicaid Enrollees Reduced Inpatient Hospital Costs, 34 Health Aff. 653 (2015). 238 U.S. Dep’t of Health & Human Servs., Facing Addiction in America: The Surgeon General’s Report on Alcohol, Drugs, and Health 1–19, 6–5 (2016). 358 Terry sufering from OUD are particularly vulnerable populations that in practice require high levels of care coordination. These cohorts also need a well-thought-out continuum of care such that harm reduction or emergency department interventions can lead to treatment or, later, that treatment can lead to recovery services.239 The insurance policy stratifcation discussed above relates primarily to access to care, including the near-zero access experienced by the uninsured and the diferential levels of care available to cohorts insured within diferent strata. Fragmentation is less about access and more about the quality of care that is delivered. Of course, those faws overlap. For example, facilities being detox-only or not ofering a full range of evidence-based medication assisted treatments240 exhibit aspects relating both to access and quality. Similarly, the absence of a progressive continuum of care not only frustrates clinical interventions but also other innovative programs. For example, researchers found that, while an innovative police-led referral program241 proved efective in referring persons to short- term services, it could not “overcome a fragmented treatment system focused on acute episodic care which remains a barrier to long-term recovery.”242 Behavioral healthcare frustrates clinical interventions by placing limitations on the number of treatment options at a time when the opposite is required. As already discussed, Medicaid previously maintained an IMD exclusion, prohibiting Medicaid payments for some residential programs.243 There are also limitations on the number of OTPs that are the requisite location for most MAT treatments.244 By law, OTPs must be accredited
239 See P. Todd Korthius et al., Primary Care-Based Models for the Treatment of Opioid Use Disorder, 166 Annals Internal Med. 268, 276 (2017). 240 Hannah K. Knudsen et al., Barriers to the Implementation of Medication-Assisted Treatment for Substance Use Disorders: The Importance of Funding Policies and Medical Infrastructure, 34 Evaluation & Program Plan. 375, 375–76, 379 (2011), https://doi.org/10.1016/j.evalprogplan.2011.02.004. See also Brendan Saloner & Colleen L. Barry, Ending the Opioid Epidemic Requires a Historic Investment in Medication-Assisted Treatment, 37 J. Pol. Analysis & Mgmt. 431 (2018). 241 Police Assisted Addiction & Recovery Initiative, https://paariusa.org/ (last visited Sept. 28, 2018). 242 Davida M. Schif et al., A Police-Led Addiction Treatment Referral Program in Gloucester, MA: Implementation and Participants’ Experiences, 82 J. Substance Abuse Treatment 41, 41 (2017). 243 See supra text accompanying notes 215–18. 244 Medication and Counseling Treatment, Substance Abuse & Mental Health Servs. Admin., U.S. Dep’t. of Health & Human Servs., https://www. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 359 by an approved accrediting body and certifed by SAMHSA.245 The regulatory model is designed to ensure that medications are accompanied by appropriate “counseling and behavioral therapies, to provide a ‘whole-patient’ approach to the treatment of substance use disorders.”246 Additionally, and with specifc applicability to agonists, the regulatory model is intended to prevent diversion.247 An exception applies to the partial agonist buprenorphine, through the waiver structure introduced by the Drug Addiction Treatment Act of 2000.248 Although that waiver program increased the number of physicians permitted to prescribe buprenorphine, it also placed somewhat arbitrary limits on the numbers of patients that physicians with waivers are permitted to treat.249 Those sufering from OUD face a sadly limited view of the continuum of care. For example, there is strong evidence syringe exchange programs open a path to treatment, do not increase rates of addiction,250 and reduce the risk of needle stick injuries among law enforcement ofcers in the community.251 Syringe exchange
samhsa.gov/medication-assisted-treatment/treatment (last updated Sept. 28, 2015); see also Substance Abuse & Mental Health Servs. Admin., U.S. Dep’t. of Health & Human Servs., Federal Guidelines for Opioid Treatment Programs 4 (2015), http://mpcmh.org/wpcontent/ uploads/ 2017/12/SAMHSA_Guidelines_Opiod-Treatment-Programs.pdf. 245 Opioid Treatment Program Certifcation, 42 C.F.R. § 8.11 (2018). 246 Medication-Assisted Treatment (MAT), Substance Abuse & Mental Health Servs. Admin., U.S. Dep’t. of Health & Hum. Servs., https://www. samhsa.gov/medication-assisted-treatment (last updated Sept. 28, 2015). 247 Federal Guidelines for Opioid Treatment Programs, supra note 244. 248 DEA Requirements for DATA Waived Physicians (DWPs), D.E.A. Diversion Control Div., U.S. Dep’t. of Justice, https://www.deadiversion.usdoj. gov/pubs/docs/dwp_buprenorphine.htm (last visited Dec. 16, 2018). 249 See generally Andrea G. Barthwell et al., What’s in a Number? Recommending Practicality in the Data 2000 Patient Limits, 12 J. Opioid Mgmt. 243 (2016). A situation that was somewhat improved by the 2018 opioid legislation. See SUPPORT for Patients and Communities Act, Pub. L. No. 115-271, § 3201(a) (2018). 250 Stefanie A. Strathdee et al., Needle-Exchange Attendance and Health Care Utilization Promote Entry into Detoxifcation, 76 J. Urb. Health 448 (1999), https://www. ncbi.nlm.nih.gov/pubmed/10609594; see also Inst. of Med., Nat’l Acad. of Sci., Preventing HIV Infection Among Injecting Drug Users in High-Risk Countries: An Assessment of the Evidence 141 (2006), https://www.nap.edu/read/11731/chapter/6#140. 251 Samuel L. Groseclose et al., Impact of Increased Legal Access to Needles and Syringes on Practices of Injecting-Drug Users and Police Ofcers – Connecticut, 1992-1993, 10 J. Acquired Immune Deficiency Syndromes & Hum. Retrovirol 82, 360 Terry programs are safe places and a place of re-entry from the streets for those with OUD. They ofer persons with OUD a route to a safer life, the minimization of comorbidities such as HIV/AIDS or Hepatitis-C, treatment, and even recovery,252 suggesting they should be more formally recognized as part of the continuum of care.253 Similarly, emergency department treatment should be recognized as a step toward treatment or at least chronic disease management.254 As noted by Mark Olfson and colleagues, “[t]he high and broadly distributed mortality risks after nonfatal opioid overdose underscore the importance of coordinating medical, substance use, and mental health management after opioid overdose.”255
2. Non-Aligned Data Protection Models Healthcare data enjoy exceptional protection under federal law when compared to data in other domains.256 Some data in healthcare subdomains experience even greater degrees of protection; these include the exceptional protection for process notes taken by psychotherapists257 and the Genetic Information Nondiscrimination Act of 2008’s prohibitions on the acquisition of genetic information.258 Arguably, the strongest protection given to any healthcare data is that applied to behavioral health information by the Confdentiality of Substance Use Disorder Patient Records
86–88 (1995). 252 Elizabeth Taylor, AIDS Found., AIDS Watch: Syringe Exchange Programs (2015), https://www.aidsunited.org/data/ fles/Site_18/ AW2015Syringe Exchange_Web.pdf. 253 See Michael Kidorf et al., Benefts of Concurrent Syringe Exchange and Substance Abuse Treatment Participation, 40 J. Substance Abuse Treatment 265 (2011), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3056913/ (users of syringe exchange programs also participating in any type of substance abuse treatment reported less drug use). 254 See Andrew Herring, Addiction Treatment Comes to the Emergency Department, Cal. Health Care Found. (May 17, 2018), https://www.chcf.org/blog/ addiction-treatment-comes-to-the-emergency-department/. See generally Gail D’Onofrio et al., Emergency Department–Initiated Buprenorphine/Naloxone Treatment for Opioid Dependence: A Randomized Clinical Trial, 313 JAMA 1636 (2015). 255 Mark Olfson et al., Causes of Death After Nonfatal Opioid Overdose, 75 Jama Psychiatry 821, 821 (2018). 256 See generally Nicolas Terry, Regulatory Disruption and Arbitrage in Healthcare Data Protection, 17 Yale J. Health Pol’y L. & Ethics 143, 162–71 (2017). 257 45 C.F.R. §§ 164.501, 164.508(a)(2) (2018). 258 45 C.F.R. § 164.502(a)(5)(i) (2018). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 361 rule, often referred to as 42 C.F.R. Part 2 (or just “Part 2”).259 The federal Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) Privacy Rule applies to patient data in most traditional healthcare environments.260 As a result, HIPAA privacy applies to patients being treated for substance use or other mental health issues.261 HIPAA permits broad data-sharing between providers without requiring any patient consent.262 The Privacy Rule does not contain any provisions specifc to substance use patients. However, Part 2 provides an additional layer of confdentiality for the records of SUD (and therefore OUD) patients.263 Part 2 applies to federally-assisted programs that provide SUD programs to diagnosis, treat, or refer. Part 2 can apply to personnel or a unit contained within a general medical facility.264 Most importantly, Part 2 has required an additional, highly specifc consent from the patient before SUD records may be shared.265 In 2017, SAMHSA updated Part 2 including some changes to the consent process.266 The updated consent provisions allow for a limited “general” consent contained in the “To Whom” section of the consent, under which a SUD patient may designate certain providers to receive certain, specifed SUD information.267 Technically, the
259 42 C.F.R. pt. 2 (2018). See generally Laura Ashpole et al., 42 C.F.R. Part 2 in Retrospective: The 30-Year Journey of the Alcohol and Drug Abuse Treatment Confidentiality Regulations (2017), https:// www.healthlawyers.org/Members/PracticeGroups/TaskForces/BH/briefngs/ Documents/42_CFR_Part2_MB.pdf. 260 45 C.F.R. §§ 160, 162, 164 (2018). In general, the HIPAA rules apply to “covered entities,” including most doctors, hospitals, and treatment facilities. Covered Entities and Business Associates, U.S. Dep’t of Health & Human Servs., https://www.hhs.gov/hipaa/for-professionals/covered-entities/ index.html (last visited June 16, 2017). 261 45 C.F.R. § 164.501 (2018). 262 45 C.F.R. § 164.506 (2018). 263 Susan Awad, Confused by Confdentiality? A Primer on 42 CFR Part 2, Am. Soc. of Addiction Med. (Aug. 15, 2013), https://www.asam.org/ resources/publications/magazine/read/article/2013/08/15/confused-by- confdentiality-a-primer-on-42-cfr-part-2. 264 42 C.F.R. § 2.11 (2018). 265 42 C.F.R. § 2.31 (2018). See generally Substance Abuse Confdentiality Regulations, Substance Abuse & Mental Health Servs. Admin., U.S. Dep’t. of Health & Human Servs., https://www.samhsa.gov/about-us/who-we- are/laws-regulations/confdentiality-regulations-faqs (last updated May 1, 2018). 266 Confdentiality of Substance Use Disorder Patient Records, 82 Fed. Reg. 6052 (Jan. 18, 2017). 267 42 C.F.R. §§ 2.31, 2.33 (2018). 362 Terry new consent rules operate quite diferently from HIPAA and bring with them distinct accountability, research, and other provisions. Although the updated disclosure rule does include a new “medical emergency” exception,268 even that is not as permissive as the equivalent HIPAA approach. In 2018, SAMHSA revisited some of these issues but again declined to further align HIPAA and Part 2 provisions.269 There has been a consistent drumbeat to better align these two sets of privacy regulations. For example, The President’s Commission on Combating Drug Addiction and The Opioid Crisis recommended action to “[b]etter align, through regulation, patient privacy laws specifc to addiction with the Health Insurance Portability and Accountability Act (HIPAA) to ensure that information about SUDs be made available to medical professionals treating and prescribing medication to a patient.”270 The diferential approach to protecting SUD records is blamed for inadequate integration of full SUD patient data in electronic health records, the exclusion of SUD records from statewide sharing through Health Information Exchanges, the perpetuation of stigma by treating SUD patients diferently, and the exclusion of SUD patients from potentially benefcial research based on electronic health records data.271 Continued data segregation has been justifed on the grounds that such data are particularly sensitive and that there has been a history of discrimination against SUD patients.272 For example, The
268 42 C.F.R. § 2.51 (2018). 269 Confdentiality of Substance Use Disorder Patient Records, 83 Fed. Reg. 239, 241 (Jan. 3, 2018). 270 Office of Nat’l Drug Control Policy, The President’s Commission on Combating Drug Addiction and The Opioid Crisis Final Report 210 (2017), https://www.whitehouse.gov/sites/ whitehouse.gov/fles/images/Final_Report_Draft_11-15-2017.pdf; see also Letter from Rebecca Murow Klein, Chair, P’ship to Amend 42 CFR Part 2, to Orrin Hatch, Chairman, U.S. Senate Comm. on Fin., and Ron Wyden, Ranking Member, U.S. Senate Comm. on Fin. (Feb. 16, 2018), http://www. helpendopioidcrisis.org/wp-content/uploads/2018/02/Partnership-to- Amend-42-CFR-Part-2-Recommendations.pdf. 271 See Austin B. Frakt & Nicholas Bagley, Protection or Harm? Suppressing Substance- Use Data, 372 New Eng. J. of Med. 1879 (2015). 272 U.S. Dep’t of Health & Human Servs., Facing Addiction in America: The Surgeon General’s Report on Alcohol, Drugs, and Health 6-1, 6-33 to 6-34 (2016), https://addiction.surgeongeneral. gov/sites/default/fles/surgeon-generals-report.pdf. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 363
Surgeon General’s Report noted, “[c]urrently, persons with substance use disorders involving illicit drugs are not protected under anti- discrimination laws, such as the ADA.”273 This is partially correct; although SUD is recognized by the ADA as a disability, protection is lost if the person is “currently engaging in the illegal use of drugs.”274 As noted by SAMHSA, disclosure of SUD information can lead to a host of negative consequences, “including: [l]oss of employment, loss of housing, loss of child custody . . . discrimination by medical professionals and even arrest, prosecution, and incarceration.”275 It is arguable that those seeking behavioral health services are less concerned about data sharing between providers but particularly fearful of information about their illness being shared with law enforcement and corrections. An overarching policy imperative is to normalize or mainstream the treatment of SUD. However, if our healthcare delivery is to move to a position where SUD is treated as a mainstream disease, then segregation of data between SUD populations and other populations must be better managed. There is a very real safety angle here; for example, there is some evidence that patients with a substance use history unknown to treating physicians have been put at risk by opioid prescribing.276 This is not a newly identifed problem and there have been unsuccessful attempts to pass legislation to provide regulatory authority to better align the rules.277 As HHS rolls out regulations and policies authorized under the 21st Century Cures Act to
273 Id. at 6-34. 274 42 U.S.C. § 12114(a) (2018); see also 42 U.S.C. § 12111(6) (2018). 275 Confdentiality of Substance Use Disorder Patient Records, 82 Fed. Reg. 6052, 6053 (Jan. 18, 2017); see Paul N. Samuels & Patty McCarthy Metcalf, Relaxing Patient Privacy Rules Would Worsen the Opioid Epidemic, STAT News (Nov. 24, 2017), https://www.statnews.com/2017/11/24/opioid-epidemic-patient- privacy/ (presenting strong defenses of Part 2); see also Karla Lopez & Deborah Reid, Discrimination Against Patients with Substance Use Disorders Remains Prevalent and Harmful: The Case for 42 CFR Part 2, Health Aff. Blog (Apr. 13, 2017), https://www.healthafairs.org/do/10.1377/hblog20170413.059618/full/. 276 See Constance M. Weisner et al., Trends in Prescribed Opioid Therapy for Non-Cancer Pain for Individuals with Prior Substance Use Disorders, 145 PAIN 287 (2009). 277 See, e.g., Overdose Prevention and Patient Safety Act of 2017, H.R. 3545, 115th Cong. (2017); Helping Families in Mental Health Crisis Act of 2016, H.R. 2646, 114th Cong. (2016). 364 Terry promote interoperability,278 discourage “information blocking,”279 and establish a Trusted Exchange Framework,280 more and improved clinical sharing inevitably will result and may, in the future, lead to some consensus on how to proceed with the diferential laws. HHS’s Ofce of Civil Rights has published FAQs encouraging sharing281 and, more recently, issued a “clarifying” Opioid Crisis Guidance that notes the fexibility in the HIPAA rule that permits providers to disclose information to families in dangerous or emergency situations and the fact that a patient’s personal representative (recognized as such by state law) has the same rights as the patient.282 However, the Guidance does not address the relationship between HIPAA and the more stringent Part 2.283 Equally, SAMHSA has issued a FAQ on the interrelationship of Part 2 and the Health Information Exchange.284 This dichotomous approach is clearly insufcient. Although the House of Representatives’ version of the 2018 opioid legislation would have amended Part 2’s enabling legislation285 to permit the sharing of SUD records with other treatment providers, as permitted under the HIPAA Privacy Rule,286
278 42 U.S.C. § 300jj (2018). See generally Don Rucker, Achieving the Interoperability Promise of 21st Century Cures, Health Aff. Blog (June 19, 2018), https:// www.healthafairs.org/do/10.1377/hblog20180618.138568/full/. 279 42 U.S.C. § 300jj-52(a)-(b) (2018). 280 The Office of the Nat’l Coordinator for Health Info. Tech., Draft Trusted Exchange Framework (2018), https://www.healthit. gov/sites/default/fles/draft-trusted-exchange-framework.pdf. 281 FAQ: Disclosures to Family and Friends, HHS.gov, https://www.hhs.gov/hipaa/ for-professionals/faq/disclosures-to-family-and-friends/index.html (last visited Dec. 15, 2018). 282 HHS Ofce for Civil Rights Issues Guidance on How HIPAA Allows Information Sharing to Address the Opioid Crisis, HHS.gov (Oct. 27, 2017), https://www.hhs.gov/ about/news/2017/10/27/hhs-ofce-civil-rights-issues-guidance-how-hipaa- allows-info-sharing-address-opioid-crisis.html. 283 Id. 284 Legal Action Ctr. for the Substance Abuse & Mental Health Servs. Admin., U.S. Dep’t of Health & Human Servs., Frequently Asked Questions: Applying the Substance Abuse Confidentiality Regulations to Health Information Exchange (HIE) (2010), https://www.samhsa.gov/sites/default/fles/faqs-applying- confdentiality-regulations-to-hie.pdf. 285 42 U.S.C. § 290dd-2 (2018). 286 Overdose Prevention and Patient Safety Act, H.R. 6082, 115th Cong. (2018). See generally Mary Butler, House of Representatives Passes Privacy Law Updates Governing Opioid Abuse Treatment, J. of AHIMA (June 20, 2018), http:// journal.ahima.org/2018/06/20/house-of-representatives-passes-privacy-law- VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 365 that provision did not survive reconciliation and was omitted from the fnal legislation.287 Separately, however, on July 26, 2018, HHS Deputy Secretary Hargan tweeted that the agency would soon be issuing Requests for Information on HIPAA and Part 2 and would be “taking regulatory action,”288 a position confrmed by Secretary Azar.289 From harm reduction through treatment and recovery services, together with the accompanying patient data, there needs to be a more global sense of how to improve and coordinate behavioral health services. States need to improve case management, increase the availability of peer coaches, and invest in wrapround services, either through direct service improvements or by incenting stakeholders such as Medicaid managed care providers to step up. The ASAM levels of care discussed above290 should be seen as an important baseline but one to which harm reduction and long-term recovery should be added.
V. The Healthcare Wasteland: Jails and Prisons
I think we are in rats’ alley Where the dead men lost their bones.291
More than half of state prisoners and two-thirds of sentenced jail inmates meet the diagnostic criteria for SUD.292 A quarter of inmates sufer from both SUD and a co-occurring mental health
updates-governing-opioid-abuse-treatment/. 287 SUPPORT for Patients and Communities Act, H.R. 6, 115th Cong. (2018). 288 Eric D. Hargan (@DepSecHargan), Twitter (Jul. 26, 2018, 1:05 PM), https://twitter.com/DepSecHargan/status/1022573758475849728. 289 Alex M. Azar II, Sec’y, U.S. Dep’t of Health & Human Servs., Remarks to the Heritage Foundation (July 26, 2018), https://www.hhs.gov/about/leadership/ secretary/speeches/2018-speeches/remarks-to-the-heritage-foundation. html. 290 See supra text accompanying note 52. 291 T.S. Eliot, The Waste Land (1922). 292 Jennifer Bronson et al., U.S. Dep’t of Justice, Drug Use, Dependence, and Abuse Among State Prisoners and Jail Inmates, 2007-2009 1 (2017), https://www.bjs.gov/content/pub/pdf/ dudaspji0709.pdf; The Nat’l Ctr. on Addiction & Substance Abuse at Columbia Univ., Behind Bars II: Substance Abuse and America’s Prison Population 3 (2010), https://www.centeronaddiction. org/addiction-research/reports/behind-bars-ii-substance-abuse-and- america%E2%80%99s-prison-population. 366 Terry problem.293 It has been estimated that between a quarter and a third of those who sufer from heroin addiction pass through the corrections system each year.294 Ironically, however, the criminal justice system is the place where the medicalization of substance use is least likely to be endorsed.295 Worse, the criminal justice system frequently embraces the very opposite of the policy needed to address the opioid epidemic by criminalizing those who need behavioral healthcare services. Just as the Penrose hypothesis played out,296 transforming our corrections facilities into a makeshift mental health system,297 so now the cycle has repeated as prisons and jails now also house a signifcant population of those with SUD.
A. The State of Jails and Prisons Fewer than 30 of the nation’s 5,100 jails and prisons ofer methadone or buprenorphine-based MAT.298 This is despite the evidence that those treatments result in signifcant reduction in
293 The Nat’l Ctr. on Addiction & Substance Abuse at Columbia Univ., supra note 292, at 3. See generally Roger H. Peters et al., Co-Occurring Substance Use and Mental Disorders in The Criminal Justice System: A New Frontier of Clinical Practice and Research, 38 Psychiatric Rehabilitation J. 1 (2015) (discussing the prevalence of substance use disorders among prison inmates with mental disorders than those without a mental disorder). 294 Amy E. Boutwell et al., Arrested on Heroin: A National Opportunity, 3 J. of Opioid Mgmt. 328, 328 (2007). 295 See How People with Opioid Addictions are Treated in Prison, NPR (Aug. 30, 2018), https://www.npr.org/2018/08/30/643445817/how-people-with- opioid-addictions-are-treated-in-prison; see also Erin Schumaker, Inadequate Prison Policies Put Former Inmates at Greater Risk of Opioid Death, Huffington Post (July 31, 2018) https://www.hufngtonpost.com/entry/inadequate- prison-policies-put-former-inmates-at-greater-risk-of-opioid-death_ us_5b58e0c9e4b0b15aba94c3b6. 296 L.S. Penrose, Mental Disease and Crime: Outline of a Comparative Study of European Statistics, 18 British J. Med. Psychol. 1 (1939). The hypothesis is that there is an inverse relationship between a country’s available psychiatric beds and its prison population. See, e.g., Mark Toynbee, The Penrose Hypothesis in the 21st Century: Revisiting the Asylum, 18 Evidence-Based Mental Health 76 (2015). 297 Samantha Raphelson, How the Loss of U.S. Psychiatric Hospitals Led to a Mental Health Crisis, NPR (Nov. 30, 2017, 1:15 PM), https://www.npr. org/2017/11/30/567477160/how-the-loss-of-u-s-psychiatric-hospitals-led- to-a-mental-health-crisis. 298 Timothy Williams, Opioid Users Are Filling Jails, Why Don’t Jails Treat Them?, N.Y. Times (Aug. 4, 2017), https://www.nytimes.com/2017/08/04/us/heroin- addiction-jails-methadone-suboxone-treatment.html. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 367 post-release overdoses or deaths299 and decreased recidivism.300 According to Redonna Chandler and colleagues, “the criminal justice system provides a unique opportunity to intervene and disrupt the cycle of drug use and crime in a cost-efective manner,” however they also recognize that “[t]he challenge of delivering treatment in a criminal setting requires the cooperation and coordination of 2 disparate cultures: the criminal justice system organized to punish the ofender and protect society and the drug abuse treatment systems organized to help the addicted individual.”301 That last reason aside, there are several explanations for the low rate of utilization of MAT in the criminal justice system. In jails the stays are, or should be, brief—rendering efective treatment questionable. However, jails do ofer an opportunity for screening and referral to treatment. The situation in prisons is more complicated, with cost issues,302 multiple levels of stigma,303 and an institutional culture that is oppositional to the use and potential diversion of agonist or partial agonist drugs.304 Nevertheless, methadone treatment has been successfully employed at Rikers Island in New York City for 30 years, resulting in “overall health care cost savings, reduced crime and recidivism, reduced HIV and hepatitis C transmission, and better than average rates of recovery from drug use.”305 A similar success story has
299 John Marsden et al., Does Exposure to Opioid Substitution Treatment in Prison Reduce the Risk of Death After Release? A National Prospective Observational Study in England, 112 Addiction 1408, 1415 (2017). 300 Vincent Tomasino et al., The Key Extended Entry Program (KEEP): A Methadone Treatment Program for Opiate-Dependent Inmates, 68 Mount Sinai J. Med. 14, 19–20 (2001). 301 Redonna K. Chandler, et al., Treating Drug Abuse and Addiction in the Criminal Justice System: Improving Public Health and Safety, 301 JAMA 183, 189–90 (2009) (citation omitted). 302 An issue not limited to SUD. See, e.g., Adam Beckman et al., Follow California’s Lead: Treat Inmates with Hepatitis C, HealthAffairs (July 24, 2018), https:// www.healthafairs.org/do/10.1377/hblog20180724.396136/full/?. 303 German Lopez, How America’s Prisons are Fueling the Opioid Epidemic, Vox (Mar. 26, 2018, 9:20 AM), https://www.vox.com/policy-and- politics/2018/3/13/17020002/prison-opioid-epidemic-medications- addiction. 304 Leah Pope et al., A New Normal: Addressing Opioid Use Through the Criminal Justice System, Vera Inst. Just., https://www.vera.org/publication_downloads/ new-normal-opioid-use-criminal-justice-system/new-normal-opioid-use- criminal-justice-system.pdf (last visited Sept. 28, 2018). 305 Christine Vestal, At Rikers Island, a Legacy of Medication-Assisted Opioid Treatment, PEW (May 23, 2016), http://www.pewtrusts.org/en/research-and-analysis/ 368 Terry been reported from the Rhode Island Department of Corrections;306 a unifed prison/jail system that uses all three forms of MAT that extends the continuum of care such that individuals who are on MAT at intake are not tapered and, upon reentry, connect treated individuals to community-based resources.307 Notwithstanding these successes, at least “28 [states] don’t fully ofer any medication to prisoners with opioid use disorders.”308 It is hardly surprising, therefore, that there are examples of persons sufering from a diagnosable and diagnosed disease, but who have been denied the accepted standard of care, who have then sought legal redress.309 The courts have adopted a high bar for Eighth Amendment inadequate treatment claims, “medical indiference,” that requires the showing of not only medical malpractice but also animus.310 Therefore, as jurisprudence stands today, Title II of the ADA311 may be a better vehicle for bringing actions against jails and prisons for inadequate OUD treatment. For example, the U.S. Attorney’s ofce in Massachusetts has initiated an investigation of the Massachusetts Department of Corrections for discontinuing MAT upon incarceration.312 A lawsuit fled by the American Civil Liberties Union of Washington State against Whatcom County Jail in Bellingham, Washington goes further, arguing that prisoners
blogs/stateline/2016/05/23/at-rikers-island-a-legacy-of-medication-assisted- opioid-treatment. 306 Andrew Joseph, One State Takes a Novel Approach to Opioid Addiction: Access to Treatment for All Inmates, STAT (Aug. 3, 2017), https://www.statnews. com/2017/08/03/opioid-treatment-prisons/. 307 Traci C. Green et al., Postincarceration Fatal Overdoses After Implementing Medications for Addiction Treatment in a Statewide Correctional System, 75 JAMA Psychiatry 405, 405–407 (2018). 308 Lopez, supra note 303. 309 See, e.g., Gallegos v. Bernarlillo Cty. Bd. of Comm’rs, No. CIV 16-0127 JB/ WPL, 2017 WL 3575883, *1–2 (D. N.M. Aug. 17, 2017); Niemic v. UMass Corr. Health, 89 F. Supp. 3d 193, 198-99 (D. Mass. 2015). 310 See, e.g., Helling v. McKinney, 509 U.S. 25, 30–35 (1993); Estelle v. Gamble, 429 U.S. 97, 103–107 (1976); cf. Brown v. Plata, 563 U.S. 493, 510 (2011) (allowing prisoner release after showing of overcrowding and systemic failures related to medical treatment). 311 42 U.S.C. § 12131; 28 C.F.R pt. 35 (2018) (protecting individuals with disabilities from discrimination on the basis of disability regarding services, programs, and activities provided by State and local government entities). 312 Letter from U.S. Att’y Gen., Dist. of Mass., to Mass. Exec. Ofce of Pub. Safety & Sec., Gen. Counsel, and Mass. Exec. Ofce of Health & Human Servs., Gen. Counsel (Mar. 16, 2018). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 369 should be treated with opiate-withdrawal medication rather than being required to go “cold turkey.”313
B. Reentry and Avoiding Recidivism According to the National Center on Addiction and Substance Abuse, “[r]eleased inmates are more than three times likelier than the general population to meet clinical criteria for substance abuse,”314 while “[o]ver half (52.2 percent) of substance-involved inmates have one or more previous incarcerations compared with 31.2 percent of inmates who are not substance involved.”315 More specifcally, with regard to OUD, and according to German Lopez, “[s]ince so few state prisons ofer adequate access to treatment, the days and weeks after a person’s release from prison are perhaps the single deadliest time period in the US’s opioid epidemic.”316 Huge numbers of our fellow citizens are therefore trapped in a cycle of imprisonment, untreated OUD, and reincarceration. Many die shortly after release, with one study fnding, “[d]uring the frst 2 weeks after release, the risk of death among former inmates was 12.7 times that among other state residents.”317 This does not have to be the case even in corrections facilities that are opposed to agonists. For example, a pilot study found that treating prisoners with extended-release naltrexone just prior to reentry from jail was associated with signifcantly lower rates of opioid relapse.318 The negative structural determinants go beyond the availability of treatment. The social determinants are equally negative, with released inmates highlighting “the signifcance of
313 Gene Johnson, Lawsuit: Washington Jail Must Provide Addiction Treatment, U.S. News & World Rep. (June 7, 2018, 7:53 PM), https://www.usnews.com/ news/best-states/washington/articles/2018-06-07/lawsuit-washington-jail- must-provide-addiction-treatment. 314 Nat’l Ctr. on Addiction and Substance Abuse at Colum. Univ., supra note 292, at 59. 315 Id. at 5. 316 Lopez, supra note 303. 317 Ingrid A. Binswanger et al., Release from Prison – A High Risk of Death for Former Inmates, 356 New Eng. J. Med. 157, 161 (2007). 318 Joshua D. Lee et al., Opioid Treatment at Release from Jail Using Extended-Release Naltrexone: A Pilot Proof-of-Concept Randomized Efectiveness Trial, 110 Addiction 1008, 1012 (2015); cf. Aaron D. Fox et al., Release from Incarceration, Relapse to Opioid Use and the Potential for Buprenorphine Maintenance Treatment: A Qualitative Study of the Perceptions of Former Inmates with Opioid Use Disorder, 10 Addiction Sci. & Clinical Prac. 2 (Jan. 2015) (reporting multiple factors behind prisoners refusing buprenorphine upon release). 370 Terry poor social support, medical problems, and inadequate fnancial resources to support” re-integration while they simultaneously faced “ubiquitous exposure to drugs in the neighborhoods to which they were released.”319 There are very few wraparound services that aid prisoner reentry by, for example, assisting with serious issues such as employment and housing,320 while failure to acquire post-release employment is associated with poverty and recidivism.321
VI. Conclusion “Between 2001 and 2016, the number of opioid-related deaths in the United States increased by 345% . . . 33.3 to 130.7 deaths per million population;” a public health crisis particularly responsible for the premature deaths of young and middle-aged adults.322 Estimates suggest that opioids could be responsible for another half million drug-related deaths during the next decade,323 becoming this generation’s AIDS epidemic, 324 and likely even exceeding its death toll.325 Both our current healthcare system and the opioid epidemic deserve to be labelled as wicked problems. In both scenarios we are appropriately warned that wicked problems resist unitary diagnosis or single solutions.326 Although the epidemic is national in its scope, in the end, the greatest toll of the opioid epidemic likely will fall
319 Ingrid A Binswanger et al., Return to Drug Use and Overdose After Release from Prison: A Qualitative Study of Risk and Protective Factors, 7 Addiction Sci. & Clinical Prac. 3 (2012) (small qualitative study using semi-structured interviews). 320 See generally Faith E. Lutze et al., Homelessness and Reentry: A Multisite Outcome Evaluation of Washington State’s Reentry Housing Program for High Risk Ofenders, 41 Crim. Just. & Behav. 471 (2014). 321 Adam Looney & Nicholas Turner, Work and Opportunity Before and After Incarceration, Brookings Inst. (Mar. 2018), https://www.brookings.edu/ wp-content/uploads/2018/03/es_20180314_looneyincarceration_fnal.pdf. 322 Tara Gomes et al., The Burden of Opioid-Related Mortality in the United States, 1 JAMA Network Open, June 2018, at 1. 323 Max Blau, STAT Forecast: Opioids Could Kill Nearly 500,000 Americans in the Next Decade, STAT (June 27, 2017), https://www.statnews.com/2017/06/27/ opioid-deaths-forecast/. 324 Andrew Sullivan, The Opioid Epidemic is This Generation’s AIDS Crisis, N.Y. Mag. (Mar. 16, 2017), http://nymag.com/daily/intelligencer/2017/03/the-opioid- epidemic-is-this-generations-aids-crisis.html. 325 Carol Levine, The Statistics Don’t Capture the Opioid Epidemic’s Impact on Children, STAT (Jan. 2, 2018), https://www.statnews.com/2018/01/02/opioid- epidemic-impact-children/. 326 Lee, supra note 36, at 51. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 371 disproportionately on the Midwestern and Southern states that exhibit poverty, marginalized populations, poor social determinants of health, underfunded public health, and limited access to healthcare.327 Starting from the hypothesis that many of the barriers to efective interventions in the opioid crisis are properties of our defcient health access and delivery processes, it is not difcult to suggest some relevant faws that rise to the level of structural determinants: access and beneft stratifcation, the changing role of Medicaid, problems associated with fragmentation of care (the lack of behavioral health services integrated into our primary care systems cannot be overemphasized), and the lack of wraparound services. It is not necessary that we all end up agreeing that healthcare is a major cause; that “It’s the Healthcare, Stupid!” However, what we should all be able to agree on is that we will have to re-engineer our healthcare system if we wish to make any headway against this or future addictions crises.
327 Tobacco Nation: The Deadly State of Smoking Disparity in the U.S., Truth Initiative, https://truthinitiative.org/sites/default/fles/Tobacco-Nation- FINAL.pdf (last visited Dec. 17, 2018). 372 El-Sabawi
The Role of Pressure Groups and Problem Definition in Crafting Legislative Solutions to the Opioid Crisis*
Taleed El-Sabawi**
*1 I would like to thank the Center for Health Policy and Law at Northeastern University School of Law, Jennifer Huer, and symposium attendees for their insightful comments. I would like to specifcally thank Drs. David Rochefort and Gregory Curfman for their specifc suggestions on how to improve this draft. Finally, I would like to thank Dr. Sandra Tanenbaum for introducing me to the world of policy stories. ** Taleed El-Sabawi, JD, MS is an Assistant Professor of Law at Elon University School of Law. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 373
Table of Contents I. Introduction ...... 374 II. Theories of Pressure Group Influence ...... 377 A. Empirical Evidence of Pressure Groups’ Influence on Federal Legislators ...... 377 B. Federal Administrative Agencies as Narrators in U.S. Drug Policy ...... 378 III. Causal Stories, Pressure Groups, Congress, and the Opioid Crisis ...... 380 A. Types of Causal Stories Used by Pressure Groups in Congressional Hearings ...... 380 1. Implicit vs. Explicit Causal Stories ...... 381 a. Implicit Causal Stories ...... 381 b. Explicit Causal Stories ...... 382 2. Supply-Side vs. Demand-Side Causal Narratives .....383 a. Supply-Side Causal Stories ...... 383 i. Over-Prescription as a Cause of the Opioid Crisis ...... 385 b. Demand-Side Causal Stories ...... 390 B. Summary of Findings ...... 393 IV. Concluding Thoughts ...... 394 374 El-Sabawi
I. Introduction The United States legislature has historically favored punitive legislative proposals to addressing problem drug use.1 However, in addressing the current opioid crisis, legislators have been critical of past punitive approaches, 2 such as arguing that “we cannot arrest our way out of this problem.”3 Federal legislation enacted to address the opioid crisis evidences that legislators are willing to act on this rhetorical shift away from punitive approaches and have done so in a bipartisan manner.4 Such a shift in legislative approaches is often preceded by a change in the problem defnition, causal theories and aligning proposals supported by administrative agencies and organized interest groups.5 The rhetoric supporting recent federal legislation has evidenced an increasing acceptance of the ideas that addiction is a disease and that the opioid crisis is a public health issue.6 Addiction has been compared to other chronic health conditions, which require long-term maintenance,7 but the comparison has often not
1 See generally Taleed El-Sabawi, Defning the Opioid Epidemic: Congress, Pressure Groups, and Problem Defnition. 48 U. Mem. L. Rev. (forthcoming 2019). 2 See, e.g., Mike Lee, We Can Beat the Opioid Epidemic, Mike Lee U.S. Senator Utah (May 10, 2018), https://www.lee.senate.gov/public/index. cfm/2018/5/we-can-beat-the-opioid-epidemic. 3 Id. 4 See, e.g., Comprehensive Addiction and Recovery Act of 2016 (CARA), Pub. L. No. 114-198, 130 Stat. 695 (2016); 21st Century Cures Act, Pub. L. No. 114- 255, 130 Stat. 1033 (2016). CARA is bipartisan legislation that was passed with a 94–1 vote in the Senate and a 400–5 vote in the House. 162 Cong. rec. S1404 (daily ed. Mar. 10, 2016); 162 Cong. Rec. H2373 (daily ed. May 13, 2016). CARA includes funding for education, treatment, prescriber training, overdose reversal medication, and prescription drug monitoring programs (PDMPs)—policy solutions that facially appear more aligned with a health approach. The 21st Century Cures Act built on CARA by providing an additional $1 billion of funding over two years. 21st Century Cures Act. 5 Causal theories are the stated thories of causation of a social problem and are components of causal stories. See Deborah A. Stone, Policy Paradox: The Art of Political Decisions Making 206–07 (3d ed. 2012). See generally El-Sabawi, supra note 1 (providing historic examples of how changes in problem defnitions have historically preceded changes in legislative approaches in drug policy). 6 See, e.g., Portman, Whitehouse, Ayotte, Klobuchar Cheer Final Passage of Comprehensive Addiction and Recovery Act, Rob Portman U.S. Senator for Ohio (July 13, 2016) [hereinafter Portman], http://www.portman.senate.gov/public/index. cfm/2016/7/portman-whitehouse-ayotte-klobuchar-cheer-fnal-passage-of- comprehensive-addiction-and-recovery-act. 7 Drug Abuse and Addiction: One of America’s Most Challenging Public Health Problems VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 375 extended to the social determinants of chronic conditions.8 As such, federal legislation, like the Comprehensive Addiction and Recovery Act of 2016 (CARA) and the 21st Century Cures Act, does not fully embrace model drug policy9 or evidence a substantive attempt to address the psychological-sociological-economic (PSE) factors that contribute to problem drug use.10 Since organized interest groups and federal administrative agencies have historically been infuential in defning problem drug use during nationwide crisis,11 it stands to reason that the manner in which these pressure groups defned the problem may have infuenced or, at least, provided support for legislators’ decisions to shy away from a criminal justice approach. These pressure groups12 may have also afected legislators’ decisions to resort to a “health” approach that did not comprehensively address demand factors or demonstrate a commitment to reforming U.S. drug policy to meet international standards of best practice.13 To date, little scholarly analysis has been conducted on the involvement of organized interests and federal administrative agencies in defning the causes of the opioid crisis and the preferred legislative solutions. In an efort to provide a snapshot of what such involvement
− Addiction is a Chronic Disease, Nat’l Inst. Drug Abuse (June 2005), https:// archives.drugabuse.gov/publications/drug-abuse-addiction-one-americas- most-challenging-public-health-problems/addiction-chronic-disease. 8 See, e.g., Portman, supra note 6. 9 See Tamyko Ysa et al., Governance of addictions: European Public Policies 47−48 (2014) (comparing European policies and identifying best practices). 10 See supra note 4, and accompanying text. 11 See generally David F. Musto, American Disease: Origins of Narcotic Control (Oxford Univ. Press, 3d ed. 1999) (1973). See also El- Sabawi, supra note 1. 12 For the purposes of this paper, I have defned pressure groups to include all groups that place pressure on legislators to vote for an issue in a specifed manner. My defnition therefore includes both organized interest groups outside of the government and administrative ofcials within the government. 13 See ALICE RAP Science Findings #1–5, #40–51, ALICE RAP (n.d.) [hereinafter ALICE RAP Findings], https://www.alicerap.eu/resources/ documents/doc_download/387-alice-rap-science-findings-full-document- 55-fndings.html. ALICE RAP was a research collaboration by 200 scientists from 25 countries and more than 29 disciplines aimed at compiling evidence to inform European drug policy. About ALICE RAP: The Project and Results, ALICE RAP, https://www.alicerap.eu/about-alice-rap.html#a-governance-of- addictions (last visited Mar. 28, 2018). The researchers also analyzed existing drug policies in European countries and provided suggestions for how to implement best practices. See generally ALICE RAP Findings, supra note 13. 376 El-Sabawi may look like, this article explores the types of narratives used by pressure groups to defne the opioid crisis in the congressional hearing discourse prior to the enactment of CARA. In order to do this, I analyzed 144 congressional hearing testimonies14 discussing the opioid crisis and identifed the most common narratives used to explain the causes of the opioid crisis.15 I also identifed the types of legislative proposals supported in these narratives. Understanding the narratives used by organized interests and federal administrative agencies to defne the opioid crisis ofers some insight as to the narratives that were used to justify the inclusion of the provisions enacted in CARA, as narratives can be used to narrow down the available alternative legislative solutions. Organized interest groups ofer the opportunity for citizens, including invested professionals, researchers, and individuals sufering from a substance use disorder, to engage in the problem defnition process and infuence the types of legislative proposals enacted. Gaining a better understanding of how organized interests have contributed or shaped the legislative problem defnition discourse will better equip activated citizens to navigate the pluralist discourse and advocate for signifcant change.
14 The corpus, or population, of documents that were analyzed were compiled by conducting a search on Thomas Reuters Westlaw for congressional hearing testimony using the search terms “addict!” and “overdose!” and limiting the dates to hearings occurring in January 2014 to June 2016. I chose to limit the analysis to hearings occurring within these dates because it would capture the discourse that preceded CARA, which was passed in June 2016. I restricted the dataset to 2014 because of resource constraints. Future research will be needed to determine whether the fndings of this article are time-limited. The terms addict! and overdose! were chosen because the purpose of my analysis is to capture the discourse on the social problem commonly referred to as the opioid crisis. It has been characterized by rates in overdose and an acknowledgment of the problem of addiction. I then excluded testimony, or parts of testimony, that discussed methamphetamine use, synthetic drug use, and marijuana use, as these problems were characterized diferently than the opioid crisis, a diference I hope to capture in a future analysis. The results were then limited to hearings that occurred from 2014 to 2016. Both written and oral testimony were included. 15 To analyze the congressional hearing testimony, I used both qualitative and quantitative text analysis. I used QDAMiner5 for the qualitative coding and Wordstat7 for the quantitative analysis. I used content analysis methodology to create categories of causal stories and proposed solutions. Once the categories were saturated, meaning causal stories I identifed ft into the categories created and no additional categories needed to be created, I identifed patterns and broader themes evidenced by the categories. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 377
I begin Part II with a discussion of how organized interest groups and federal administrative agencies are theorized to infuence legislators, with a short overview of the problem defnition and the role of causal stories—a type of policy narrative—in the problem defnition process. In Part III, I discuss the types of causal stories that I identifed in my analysis of congressional hearing testimony, contrasting these narratives with narratives that were used in the past to support criminal justice legislative approaches. Part IV concludes with suggestions on how pressure groups can utilize this political window of opportunity16 to shift the narrative discourse from policy narratives based on causal theories of supply to causal theories that acknowledge the sociological, biological, environmental, behavioral, psychological, and economic causes of problem drug use.
II. Theories of Pressure Group Influence Although for much of this article, I refer to organized interest groups and federal administrative agencies collectively as pressure groups, the literature analyzing their infuence on legislative behavior is distinct so I review each separately.
A. Empirical Evidence of Pressure Groups’ Influence on Federal Legislators Although organized interest groups are thought to infuence federal legislators through their campaign contributions, little empirical evidence exists supporting the contention that money buys groups their preferred legislative outcomes.17 Since organized interest groups continue to spend millions of dollars funding campaigns, they must believe that the money spent is buying them something of importance. If campaign contributions are not buying legislative outcomes, they may be buying legislators’ time. Investigators have
16 I am using “political window of opportunity” here to refer to a phenomenum that is originally described by Dr. John Kingdon as a “policy window,” which occurs when three streams meet: the problem stream, the policy stream, and the politics stream. See John Kingdon, Agendas, Alternatives, and Public Policies 165−66 (2d ed. 1995). 17 See Beth L. Leech, Lobbying and Infuence, in The Oxford Handbook of American Political Parties and Interest Groups 534−51 (L. Sandy Maisel & Jefrey M. Berry eds., 2010) for a review of the literature. However, there is literature that shows that groups may contribute to legislators that are on powerful committees. See, e.g., Eleanor Nef Powell & Justin Grimmer, Money in Exile: Campaign Contributions and Committee Access, 78 J. Pol. 974, 976 (2016). 378 El-Sabawi found that legislators are more likely to meet with groups that contribute to their campaigns.18 So, although organized interest groups may not be buying votes, they may be buying legislator time and attention.19 Organized interest groups can use this time to defne social problems using causal stories that best align with their desired outcomes.20 Legislators are inclined to listen to organized interest groups, even if the groups have not contributed large sums of money to their campaigns, because interest groups may be privy to specialized, subject-matter-specifc information.21 This information provides legislators with policy-specifc information that they can use to make informed decisions and support their positions. These interest groups subsidize the legislators’ costs of acquiring this information, costs that can include time and resources.22 Meanwhile, these groups can use their privileged position to defne the problem advantageously.
B. Federal Administrative Agencies as Narrators in U.S. Drug Policy The idea that organized interest groups use causal narratives to sway legislators may seem more intuitive or believable than the use of causal narratives by federal administrative agency ofcials to do the same. However, historically, in the U.S., high ranking ofcials in federal administrative agencies have been dominant
18 Joshua L. Kalla & David E. Broockman, Campaign Contributions Facilitate Access to Congressional Ofcials: A Randomized Field Experiment, 60 Am. J. Pol. Sci. 545, passim (2016). 19 See id. at 545. 20 These outcomes of interest may not necessarily be legislative outcomes. An organized interest group may be interested in changing the dominant problem defnition, in and of itself. For example, a group of persons recovering from addiction may be invested in the adoption of the “addiction as a disease narrative”—a narrative that attributes the cause of addiction to a brain disease. Regardless of the legislative outcome, the adoption of such a narrative is a victory in and of itself, as it helps destigmatize addiction by treating it as an illness instead of a moral failing. 21 Richard L. Hall & Alan V. Deardorf, Lobbying as Legislative Subsidy, 100 Am. Pol. Sci. Rev. 69, 74 (2006). 22 Id. at 72, 74. In general, citizens’ groups’ reports are given more credibility than industry reports. See Jeffrey M. Berry, The New Liberalism: The Rising Power of Citizen Groups 127−29 (1999); William P. Browne, Cultivating Congress: Constituents, Issues, and Interests in Agricultural Policymaking 241 (1995). VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 379 players in the problem defnition of drug use.23 The causal narratives crafted by these agencies, often using data collected by the agencies, supported legislative action that limited alternative legislative solutions to those that utilized existing institutional structures. As such, these solutions were easiest to implement, unlike solutions that require multimodal approaches, agency collaboration, and the strengthening of the welfare state—even if such a multimodal approach was empirically the most successful model for combatting addiction and overdose crises.24 These ofcials and the agencies that they oversee have infuenced the problem defnition discourse in a number of ways, including by using their positions as subject matter experts, implementers, and enforcers of legislation to increase the credibility of their defnition of the problem when testifying in front of Congress.25 As such, these agencies participate in the problem defnition discourse along with organized interest groups and they may even infuence the types of causal theories supported by organized interest groups. In sum, administrative agencies infuence the problem defnition discourse by contributing scientifc information that supports their causal story and providing accompanying rhetoric. These agencies have historically infuenced the problem defnition discourse, and in doing so, afected the types of legislative solutions proposed and enacted in U.S. drug policy.26 The causal stories used by the agencies to describe the causes of drug problems have been supply-side, focusing on the availability of drugs as the cause for use, with the lack of access to drug abuse treatment coming at a distant second.27 The legislative solution enacted to address the nation’s current drug problem is a primarily health-oriented piece
23 See generally David T. Courtwright, Dark Paradise: A History of Opiate Addiction in America (enl. ed. 2001) (1982); Musto, supra note 11. See generally Federal Drug Control: The Evolution of Policy and Practice (Jonathan Erlen & Joseph T. Spillane eds., 2004) [hereinafter Erlen & Spillane]. 24 For support for this argument, compare Courtwright supra note 23, Musto, supra note 11, and Erlen & Spillane, supra note 23, with ALICE RAP Findings, supra note 13. 25 See generally Courtwright, supra note 23; Musto, supra note 11; Erlen & Spillane, supra note 23. 26 See generally Erlen & Spillane, supra note 23; Courtwright, supra note 23; Musto, supra note 11. 27 Federal administrative agencies have been historically incentivized to support supply-side policies that are criminal justice oriented. See El-Sabawi, supra note 1. See generally Erlen & Spillane, supra note 23; Musto, supra note 11. 380 El-Sabawi of legislation, and suggests that the causal stories used by federal administrative agencies were more health- or medically-oriented.
III. Causal Stories, Pressure Groups, Congress, and the Opioid Crisis
A. Types of Causal Stories Used by Pressure Groups in Congressional Hearings In order to get at least a partial view of the types of causal stories used by pressure groups to convince Congress of the causes of the opioid crisis, I reviewed a sample of federal congressional hearing testimony on substance abuse and overdoses between 2014 and 2016. I chose this time period because it preceded the enactment of CARA. The frst trend I noticed was that some narratives included an explicit reference to a cause of the problem (explicit causal theory), while others implicitly suggested the cause by supporting a particular solution (implicit causal theory). Implicit causal theories allowed the narrators to support a causal theory that aligned with a policy solution, without having to explicitly blame certain actors for causing the crisis. Even when explicit narratives were used, pressure groups demonstrated a preference for explicitly blaming groups. The second major trend I identifed was that the criminal justice theme that dominated problem defnitions in past drug crises28 has been overtaken by a health theme that included attributing the causes of addiction to a disease and calling for health actors to be involved in addressing the crisis. Despite the prevalence of the health theme, however, the idea that drug supply caused addiction and overdoses was still ever-present.29 Finally, only a select few testifers acknowledged PSE factors30 as causes of drug use, despite the empirical literature supporting their likely contribution and the emphasis placed on these causes in other developed nations.31
28 See generally Courtwright, supra note 23. 29 This idea will be discussed in detail in Section III(A)(2)(a), infra. 30 In saying psycho-social-economic factors, I am also referencing ideas of despair or lack of hope as factors that contribute to drug use and overdoses. For an overview of the despair hypothesis, see Anne Case & Angus Deaton, Mortality and Morbidity in the 21st Century, Brookings Papers on Econ. Activity 397, 397–98, 408, 417, 420, 427 (2017). See also Carl L. Hart, High Price: Drugs, Neuroscience and Discovering Myself 8, 90−94 (Penguin Books Ltd. 2013). 31 See generally Technical Reports, ALICE RAP, http://www.alicerap.eu/resources/ VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 381
1. Implicit vs. Explicit Causal Stories
a. Implicit Causal Stories A subset of the hearing testimony that I analyzed did not include explicit causal theories, in that the speakers did not unequivocally state the cause of the opioid crisis, but rather, they implied the cause through their support for a particular solution and often through the types of statistics they chose to highlight. Such testimony often began with a general statement of the scope of the opioid crisis, supported by statistics, and then a call for the proposed solution to be adopted. For example, during one hearing, the U.S. Department of Health and Human Services proposed solutions aimed at decreasing the supply and availability of prescription opioids, including providing support to states invested in prescription drug monitoring programs (PDMPs) and publishing a “best practices” for prescribing opioids without explicitly stating that over-prescription of opioid prescription pills was the cause of the opioid crisis.32 HHS implicitly communicated that over-prescription was the cause by suggesting solutions that were aimed at decreasing the supply of prescription opioids. Implicitly referencing the cause of the problem accomplishes more than just supporting the preferred solution. Arguably, the beneft of using such implicit causal stories is that the narrator avoids the political consequences of explicitly blaming a group, while still supporting the desired policy solution. For example, rather than
documents/cat_view/1-alice-rap-project-documents/7-reports.html (providing reports from the ALICE RAP series project) (last visited May 22, 2018). See, e.g., ALICE RAP, Deliverable 9.1: The Determinants of a Reduction in or Cessation of Harmful Substance Use and Gambling (n.d.), http://www.alicerap.eu/resources/documents/ doc_download/206-deliverable-09-1-determinants-of-a-reduction-in- or-cessation-of-harmful-substance-use-and-gambling.html (discussing “the determinants of harmful substance use and gambling from across 11 disciplines within fve clusters: social and cultural factors, personal factors, patterns of usage and drug knowledge, cellular and molecular factors, and multidisciplinary models.”). 32 See Examining Legislative Proposals to Combat Our Nation’s Drug Abuse Crisis: Hearing Before the Subcomm. on Health of the H. Comm. on Energy and Commerce, 114th Cong. 26−34 (2015) (prepared statement of Richard Frank, Ph.D., Assistant Secretary for Planning and Evaluation, U.S. Department of Health and Human Services), 2015 WL 6152905. 382 El-Sabawi directly blaming prescribers for causing the opioid crisis and risking the political ramifcations of accusing a relatively politically powerful group of malfeasance or negligence, use of an implicit causal story garners support for a group’s preferred policy solution, without alienating prescribers. Implicit causal stories are strategically benefcial not only because they help narrators avoid the political ramifcations of fnger-pointing, but also because they shift the discourse away from debating the causes of the opioid crisis to debating the efcacies of the proposed solutions.33 The implicit cause was assumed to be the true cause, signaling that no discussion was even needed.34 This kept actors from critiquing and, perhaps, theorizing that the causes of the opioid crisis were not only the facially obvious supply-side causal theories that were most frequently referenced, but also included fuzzier concepts of despair,35 lack of hope, or lack of opportunity,36 that were largely omitted from the pressure group discourse. Such a strategy shifts the discourse away from debating the causes of the opioid crisis to debating the merits of the solution. And, a simple before-and-after measurement of drug supply would be a sufcient measure of a solution’s efcacy.
b. Explicit Causal Stories In the congressional hearing testimony analyzed, explicit causal stories most often took the form of narratives rooted in intentional and inadvertent causal theories.37 Intentional causal theories include causal theories that posit that the actor’s action was intentional and that the actor intended the results.38 Inadvertent
33 See, e.g., id. 34 See, e.g., id. (The focus on the solutions of supply, treatment for drug users, and harm reduction imply that the problem is the supply, lack of treatment, and lack of harm reduction without explicitly stating it as the cause). 35 See generally Case & Deaton, supra note 30. 36 See Hart, supra note 30, at 8, 90−94. 37 Dr. Deborah Stone argues that most causal theories used in policy narratives involve two components: actions and consequences. Stone, supra note 5, at 208 (3d ed. 2012). Blame is assigned based on whether or not these actions and consequences were intended (or guided) or unintended (unguided). Id. Therefore, causal theories can include (1) unguided actions but with intended results (“mechanical cause”), (2) guided actions with intentional consequences (“intentional cause”), (3) guided actions with unintended consequences (“inadvertent cause”), or (4) a result of a “complex systems.” Id. at 208, 214−15. 38 Intentional causes typically include an actor that acted intentionally and VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 383 causal theories are theories of causation in which the actor may have intended to commit the act, but did not intend the resulting outcome.39 Although most testimony implicitly referred to over- prescription as the cause of the problem, there were instances in which certain actors were explicitly blamed for causing the opioid crisis by over-prescribing prescription opioids or for causing the over-prescription of opioids. Actors that were blamed explicitly for over-prescription included the medical profession (in general), pharmaceutical opioid manufacturers, drug seekers, “bad apples” in the medical industry, and foreign drug cartels.40
2. Supply-Side vs. Demand-Side Causal Narratives Aside from the distinction between explicit and implicit causal narratives, narratives could be further divided into supply- side and demand-side causal narratives. Supply-side causal narratives blamed the cause of the opioid crisis on the supply of opioids, while demand-side causal narratives attempted to explain why people demanded drugs.
a. Supply-Side Causal Stories The idea that the rise of overdoses and addiction in the U.S. was caused by the increased availability of opioids was a common feature of the congressional hearing testimony reviewed.41
intentionally caused the outcome in dispute. Id. at 209. This category includes “conspiracies,” “harmful side efects that are known but ignored,” “bad apples,” and “blaming the victim.” Id. at 208. These narratives explicitly blame the victim for causing the social problem that the victim is afected by. Id. 39 Inadvertent causal theories include “unanticipated harmful side efects of policy,” “avoidable ignorance,” “carelessness,” and “blaming the victim.” Stone, supra note 37. Causal theories that blame the victim within this category are softer than the intentional causal theories outlined in note 38, as the actions could have been well-intentioned but resulted in a poor outcome. Id. For example, if physicians, as a profession, prescribed opioids in order to treat pain as a ffth vital sign and ease the pain of the population, although their prescriptions were intentional acts, they did not intend for their patients to become addicted or overdose to the medications. See infra p. 390 and note 75. 40 Examples of causal stories used to assign blame will be provided in the following sub-section. 41 See, e.g., Heroin and Prescription Drug Abuse: Hearing Before the Caucus on Int’l Narcotics Control of the S. Comm’ns. and Temp. Comms., 113th Cong. (2014) (statement of Nora D. Volkow, M.D., Director, National Institute on Drug Abuse) [hereinafter NIDA 2014], 2014 WL 1990482. 384 El-Sabawi
Historically, supply-side causal narratives emphasized the trafcking of illicit psychoactive substances with blame explicitly assigned to foreign and local criminal enterprises.42 The 2014−2016 supply-side causal narratives difered from the blatant supply-side narratives of the past because the 2014−2016 narratives involved health actors, the health system, and health terminology.43 For example, while street gangs and Colombian cartels may have been blamed for supplying the crack cocaine responsible for the crack cocaine drug crisis in the late 1980s and early 1990s,44 doctors, pharmacists, pharmacies, and drug manufacturers were often blamed for supplying the opioid crisis.45 While internal systems at the Federal Bureau of Investigation or the Drug Enforcement Administration may have been touted as the solutions to past drug epidemics, prescription monitoring systems were proposed to identify bad apples in the healthcare system,46 as well as to improve quality of care.47 The use of health or medical terminology and actors makes the narratives used appear as if the opioid crisis is being defned as a public health issue. However, the causal narratives are classic supply-side narratives attributing the cause of addiction and overdoses to availability of the substance; and they imply that the supply must be limited because the prevalence of the supply itself causes rises of overdose and addiction. Meanwhile, the public health approach to drug policy has been characterized, at least internationally, by solutions that focus on reducing the harms
42 For historic examples, see Musto, supra note 11; Courtwright, supra note 23. 43 By health terminology, I am referring to the characterization of addiction or overdoses as adverse health consequences or side efects to medication, for example. See, e.g., Opioid Abuse Among Older Americans: Hearing Before the S. Spec. Committee on Aging, 114th Cong. (2016) (statement of Katherine Neuhausen, M.D., MPH, Assistant Professor, Department of Family Medicine and Population Health and Associate Director, Ofce of Health Innovation, Virigna Commonwealth University) [hereinafter Opioid Abuse Among Older Americans), 2016 WL 370153. 44 See Courtwright, supra note 23 at 180. 45 See, e.g., Opioid Abuse Among Older Americans, supra note 43. 46 See, e.g., Heroin/Prescription Drug Abuse: Hearing Before the S. Comm. on the Judiciary, 114th Cong. (2016) (statement of Louis J. Milione, Deputy Assistant Administrator, Ofce of Diversion Control, Drug Enforcement Administration) [hereinafter DEA 2016], 2016 WL 319839. 47 See VA Opioid Prescription Policy, Practice, and Procedures: Hearing Before the S. Comm. on Veterans’ Afairs, 114th Cong. 12−17 (2015) (prepared statement of John D. Daigh, Jr., M.D., C.P.A., Assistant Inspector General for Healthcare Inspections, Ofce of Inspector General, U.S. Department of Veterans Afairs) [hereinafter Daigh, VA Opioid Prescription Policy], 2015 WL 1348883. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 385 of use and addressing the reasons for users’ demand for the drug. The most dominant supply-side causal narratives in the 2014– 2016 legislative discourse can be grouped as follows: (1) narratives that blamed the cause of the opioid crisis on over-prescription of prescription opioids, (2) those that blamed “bad apples” for diverting prescription opioids to the streets for fnancial gain, and (3) those that blamed the opioid crisis on international supply of heroin and synthetic drugs.
i. Over-Prescription as a Cause of the Opioid Crisis Variations of causal stories that attributed the cause of the opioid crisis to physician over-prescribing included: (1) The pills themselves were highly addictive,48 even for those that used the prescriptions as directed;49 and (2) Opioids were over-prescribed and left-over prescriptions50 were diverted to the black market or misused by family members and friends.51 Some narrators explicitly blamed physicians for over-prescribing,52 and others blamed “bad apples”53 in the medical industry, pharmacists, physicians, pharmacies, drug manufacturers, and doctor shoppers, for diverting opioids for fnancial gain.54 Some narrators avoided blaming groups of actors directly and, instead, spoke generally about over-prescription or prescription drug availability as a problem.55
48 See, e.g., Opioid Abuse in America: Facing the Epidemic and Examining Solutions: Hearing Before the S. Comm. on Health, Educ., Labor, and Pensions, 114th Cong. 25−27 (2015) (prepared statement of Eric Spoford, Chief Executive Ofcer, Granite House, Derry, NH; New Freedom Academy, Canterbury, NH), 2015 WL 8158091. 49 See, e.g., Opioid Abuse Among Older Americans, supra note 43. 50 The term left-over prescriptions refers to instances in which the patient does not use the entire amount prescribed and thus some prescription pills are “left over.” See, e.g., Opioid Crisis: Field Hearing Before the S. Comm. on Homeland Sec. and Governmental Afairs, 114th Cong. 61–69 (2016) (prepared statement of Tim Westlake, M.D., Vice Chairman, State of Wisconsin Medical Examining Board and Chairman, Controlled Substances Committee) [hereinafter Heroin and Prescription Opioids in Wisconsin], 2016 WL 1572172. 51 See, e.g., DEA 2016, supra note 47. 52 See, e.g., Opioid Abuse Among Older Americans, supra note 43. 53 Blaming the “bad apples” is a common causal narrative strategy. See Stone, supra note 5, at 208−11. 54 See, e.g., Heroin and Prescription Opioids in Wisconsin, supra note 50, at 64. 55 See, e.g., Examining the Opioid Epidemic: Challenges and Opportunities: Hearing Before the S. Comm. on Fin., 114th Cong. 42 (2016) (prepared statement of David Hart, Assistant Attorney-in-Charge, Health Fraud Unit/Consumer Protection 386 El-Sabawi
For example, the Acting Deputy Administrator of the DEA argued:
Another factor that contributes to the increase of prescription drug diversion is the availability of these drugs in the household. In many cases, dispensed controlled substances remain in household medicine cabinets well after medication therapy has been completed, thus providing easy access to non-medical users, accidental ingestion, or illegal distribution for proft.56
By referring to the availability of prescription pain pills in the household, the DEA could reference the consequences of over- prescription (left-over prescriptions) as the cause of the problem, without discussing the prescribers’ acts of over-prescribing. Criminal justice agencies, like the DEA, also blamed the “bad apples” in the medical industry directly, for intentionally diverting and profting from the diversions.57 Blaming the bad apples has its political advantages because it allows the blamed group to claim that it is not the group as a whole that is “bad,” but rather, a few bad seeds that can be weeded out.58 It signals to prescribers that their competence and character were not at issue and assuaged
Section, Oregon Department of Justice), 2016 WL 706631 (“Oregon, like the rest of the nation, has continued to struggle with overprescribing and misuse of prescription opioids.”). In some cases, the speaker spoke of how PDMPs decreased the availability of prescription opioids and overdoses. See, e.g., Heroin/Prescription Drug Abuse: Hearing Before the S Comm. on the Judiciary, 114th Cong. (2016) (statement of Nora D. Volkow, M.D., Director, National Institute on Drug Abuse), 2016 WL 319843. These cases focused on the solution of curbing over-prescription rather than the cause of over-prescription itself. See, e.g., id.; Opioid Crisis: Field Hearing Before the Comm. on S. Homeland Sec. and Governmental Afairs, 114th Cong. 151−156 (2016) (prepared statement of Carole S. Rendon, Acting U.S. Attorney, Northern District of Ohio, United States Attorney’s Ofce, U.S. Department of Justice), 2016 WL 1608495. 56 Controlled Substances Quota Process: Hearing Before the Caucus on Int’l Narcotics Control of the S. Comm’ns. and Temp. Comms., 114th Cong. (2015) (statement of Joseph T. Rannazzisi, Deputy Assistant Administrator, Ofce of Diversion Control, Drug Enforcement Administration) [hereinafter DEA 2015], 2015 WL 1643509. 57 See, e.g., id. 58 See Stone, supra note 5, at 206−28, for a general discussion about the uses of the “bad apple” narrative in the policy process. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 387 any fears that prescribers, as a group, would be punished for the actions of outliers. Further, supporting such a narrative justifed the involvement of criminal justice agencies like Department of Justice and the DEA59 and enabled them to request funding to support their role in addressing the opioid crisis.60 With the decrease in support for criminal justice solutions to addressing drug problems, agencies like the DEA must continue to justify their expenditures and budget requests. Going along with the health framing, but insisting that there are still “bad guys” within the medical industry causing the problem at issue, allows agencies like the DEA to carve out a role as a “fxer” of the problem and in doing so ensure their continued relevance.61 Since medical professionals, particularly physicians’ groups and nurses’ associations, are generally positively socially constructed62 and relatively politically powerful,63 it is not surprising that some pressure groups did not expressly blame prescribers directly for causing the crisis. These groups focused instead on suggesting solutions, including PDMPs and promulgating physician guidelines, both of which were described as tools that could be used to help practitioners do their jobs better,64 as opposed to punishment
59 See DEA 2015, supra note 56. 60 Ofce of the Press Secretary, The White House, FACT SHEET: President Obama Proposes $1.1 Billion in New Funding to Address the Prescription Opioid Abuse and Heroin Use Epidemic (Feb. 2, 2016), https://obamawhitehouse.archives.gov/ the-press-office/2016/02/02/president-obama-proposes-11-billion-new- funding-address-prescription. 61 For a more detailed accounting of the changing narratives of criminal justice actors in response to the opioid crisis, see Taleed El-Sabawi, Carrots, Sticks and Problem Drug Use: The Law Enforcement Lobby’s Contribution to the Policy Discourse on Drug Use & the Opioid Crisis, Ohio St. L.J. (forthcoming 2019). 62 Individual actors are organized by society into groups. See Anne Larason Schneider & Helen Ingram, Policy Design for Democracy 107−09 (1997). These groups are ascribed certain characteristics, often resulting in the group as being either negatively or positively construed. Id. These constructions do more than determine the social value of members of the groups, but also have political consequences in the policymaking process. See id. 63 See id. 64 See, e.g., VA Opioid Prescription Policy, Practice and Procedures: Hearing Before the S. Comm. on Veterans’ Afairs, 114th Cong. 6–10 (2015) (prepared statement of Carolyn Clancy, M.D., Interim Under Secretary for Health, Veterans Health Administration, U.S. Department of Veterans Afairs) [hereinafter Clancy, VA Opioid Prescription Policy] (Veterans Administration’s explanation of the benefts of a PDMP), 2015 WL 1348882. 388 El-Sabawi for misdeeds. Some narratives did directly blame prescribers as a group for over-prescribing.65 Oftentimes, those most critical of the medical profession came from within it. For example, two physician testifers, one representing the Wisconsin Medical Board, and the other representing the Phoenix House, a well-known treatment facility, blamed prescribers for causing the opioid crisis,66 but communicated prescribers’ good intentions and lack of malice, emphasizing that they had meant to help, not harm.67 They argued that although their actions may have been intentional (prescribing opioids), the consequences of their actions (addiction, overdoses, and diversion) were unintended. Aside from defecting blame by arguing that the consequences of their acts were unintended, prescribers tried to shift blame by using (1) narratives that argued that “bad apples” were responsible for over-prescribing and diversion, (2) narratives that attempted to shift the focus to another point in the causal chain, and (3) narratives that blamed the system’s emphasis on treating pain for all patients seeking care. For example, some physicians that testifed embraced the bad apple strategy in order to defect blame from the profession as a whole.68 Such a causal narrative strategy allowed the profession as a group to shift the blame to the greedy and malicious doctor
65 See Examining the True Costs of Alcohol and Drug Abuse in Native Communities: Hearing Before the S. Comm. on Indian Afairs, 114th Cong. (2015), 18–22 (prepared statement of Hon. Melanie Benjamin, Chief Executive, Mille Lacs Band of Ojibwe Indians) [hereinafter Drug Abuse in Native Communities], 2015 WL 4572873; Heroin and Prescription Opioids in Wisconsin, supra note 50; Opioid Use Among Seniors: Hearing Before the S. Spec. Comm. on Aging, 114th Cong. (2016) (statement of Jerome Adams, M.D., MPH, Commissioner, Indiana State Department of Health), 2016 WL 739340. 66 Heroin and Prescription Opioids in Wisconsin, supra note 50; Heroin and Prescription Drug Abuse: Hearing Before the Caucus on Int’l Narcotics Control of the S. Comm’ns. and Temp. Comms., 113th Cong. (2014) (statement of Andrew Kolodny, M.D., Chief Medical Ofcer, Phoenix House Foundation) [hereinafter Statement of Kolodny], 2014 WL 1990484. See, e.g., Heroin and Prescription Opioids in Wisconsin, supra note 50, at 62 (“To speak frankly, there can be no doubt that the sources of the supply of opioids stem from the ease of availability of prescription opioids due to over-prescription by doctors themselves. We physicians need to own our part in the problem.”). 67 See, e.g., Statement of Kolodny, supra note 66, at *2 (“Doctors didn’t start overprescribing opioids out of malicious intent. For most of us it was a desire to treat pain more compassionately that led to overprescribing.”). 68 See, e.g., Heroin and Prescription Opioids in Wisconsin, supra note 50. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 389 dealers, the “bad guys.” Blame was also shifted from physicians to “doctor shoppers,”69 persons who went from doctor to doctor drug- seeking. Although doctor shoppers may have been individuals with opioid use disorder that were drug-seeking, the DEA frequently characterized “doctor shoppers” as part of pharmaceutical diversion schemes, grouping them with the likes of “prescription forgery rings, and practitioners and pharmacists who knowingly divert controlled substance pharmaceuticals.”70 Persons with opioid use disorders that were seeking opioids were more often referred to as drug seekers, and although drug seekers were also blamed for “doctor shopping,” they were not portrayed as the “bad guys.” They were described more so as persons who needed to be identifed and ofered help. They were portrayed as persons who were ill and needed treatment as opposed to “bad apples.”71 Another narrative strategy used to defect blame away from prescribers was to redirect focus to another point in the causal chain. For example, some prescribers argued that opioid pain pill manufacturers, like Purdue, misrepresented the safety of their products.72 Prescribers argued that they relied on the misrepresentations provided to them by companies like Purdue when deciding how to treat patients with chronic pain.73 The Food and Drug Administration was also blamed for allowing companies like Purdue to market their drugs for chronic pain, despite the lack of evidence for its efcacy.74
69 See, e.g., America’s Heroin and Opioid Abuse Epidemic: Hearing Before the H. Comm. on Oversight and Gov’t Reform, 114th Cong. 24–34 (2016) (written statement of Louis J. Milione, Deputy Assistant Administrator, Ofce of Diversion Control, Drug Enforcement Administration), 2016 WL 1106485. 70 Id. at 28, 30. 71 See, e.g., DEA 2016, supra note 46. Even the DEA refrained from portraying drug users as criminals, opting to refer to them instead as “our family members, friends, neighbors, and colleagues.” Id. at *1. 72 See Examining Heroin and Opiate Abuse in Southwestern Pennsylvania: Hearing Before the Subcomm. on Health Care of the S. Comm. on Fin., 114th Cong. 39–41 (2015) (prepared statement of A. Jack Kabazie, M.D., System Director, Division of Pain Medicine, Allegheny Health Network) [hereinafter Opiate Abuse in Southwestern Pennsylvania], 2015 WL 5999232; Statement of Kolodny, supra note 66. 73 See, e.g., Statement of Kolodny, supra note 66. 74 One narrator blamed not only Purdue Pharma but also the FDA’s improper enforcement of “the Federal Food, Drug and Cosmetic Act (FD&C Act) in 1996, when Purdue Pharma released OxyContin. The FD&C Act prohibits drug companies from promoting products for conditions where evidence of safety and efcacy is lacking. Instead of enforcing the FD&C Act, FDA allowed 390 El-Sabawi
Finally, prescribers blamed the system as a whole for pressuring them to address pain at every visit by treating pain as the ffth vital sign.75 This emphasis was institutionalized with system- wide quality measures that tied physicians’ performance ratings with patient reports of whether or not their pain was adequately addressed.76 Further, this emphasis persisted despite the lack of tools, aside from prescription opioids, available to prescribers to address pain.77
b. Demand-Side Causal Stories In the 2014–2016 legislative discourse analyzed, demand- side causal stories, or causal stories that attributed the cause of the opioid crisis to users’ demand for drugs, focused on the lack of access to treatment and the biological mechanisms of addiction. The idea that socio-economic, psychological, or sociological circumstances caused or even contributed to the opioid crisis was largely lacking from the congressional hearing testimony. Despite recent and past research that acknowledges the roles of depression,78 joblessness,79
Purdue Pharma to promote OxyContin to family doctors for treatment of common aches and pains and to launch a campaign of misinformation about opioid risks and benefts.” Id. at *3. 75 See, e.g., Daigh, VA Opioid Prescription Policy, supra note 47, at 12 (“Adequate management of pain has become a tenant of the compassionate delivery of health care. Subjective pain levels are now considered to be the ffth vital sign in medicine in addition to body temperature, pulse rate, respiration rate, and blood pressure.”). 76 See, e.g., Opiate Abuse in Southwestern Pennsylvania, supra note 72, at 39−40 (“Physicians who have compensation or employment tied to patient satisfaction scores may feel pressure to prescribe opioids in response to patient pain complaints.”). 77 See, e.g., Addressing Trauma and Mental Health Challenges in Indian Country: Hearing Before the S. Comm. on Indian Afairs, 114th Cong. 30–35 (2016) (prepared statement of Kathryn R. Eagle-Williams, M.D., CEO/Quality Care Director, Elbowoods Memorial Health Center, Mandan, Hidatsa and Arikara Nation), 2016 WL 4527182 (discussing the lack of tools to address mental health issues in Native American communities, including the use of opiates “to mask mental illness.”). 78 See Katherine McLean, “There’s Nothing Here”: Deindustrialization as Risk Environment for Overdose, 29 Int’l J. Drug Pol’y 19, 24−25 (2016). 79 Id. at 24. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 391 lack of social connectedness,80 neighborhood sociocultural factors,81 and lack of hope (for the betterment of life’s circumstances)82 in infuencing addiction and overdose, reference to such causes was largely ignored in the 2014–2016 hearing testimony. The narratives that cited the lack of access to treatment as a cause of the opioid crisis were often ambiguous. Most implied that access to treatment was a problem without referring to the lack of treatment as a cause of the opioid crisis, but rather proposing solutions that include expanding funding provided to treatment systems.83 These narratives generally called for an increase in funding.84 Another subset of narratives cited the lack of “evidence- based” or “quality” treatment as a problem contributing to the opioid crisis. These narratives were frequently coupled with solutions proposing increased access to medication assisted treatment (MAT).85 In other words, there seemed to be a common association of MAT with evidence-based or quality treatment. Not all MAT was treated equally, with some narrators supporting certain types of MAT over others.86 Many of these narrators were careful to acknowledge
80 See generally Amary Mey et al., What’s the Attraction? Social Connectedness as a Driver of Recreational Drug Use, 23 J. Substance Use 327 (2018); Theophile Niyonsenga et al., Social Support, Attachment, and Chronic Stress as Correlates of Latina Mother and Daughter Drug Use Behaviors, 21 Am. J. Addictions 157 (2012); John Oetzel et al., Social Support and Social Undermining as Correlates for Alcohol, Drug, and Mental Disorders in American Indian Women Presenting for Primary Care at an Indian Health Service Hospital, 12 J. Health Comm. 187 (2007). 81 Comm. on Opportunities in Drug Abuse Research, Inst. of Med., Pathways of Addiction: Opportunities in Drug Abuse Research 126−27 (1996) (discussing sociocultural and environmental factors in certain communities that afect drug use and abuse). 82 See generally Hart, supra note 30. 83 See, e.g., Opioid Abuse Among Older Americans, supra note 43; Heroin/Prescription Drug Abuse: Hearing Before the S. Comm. on the Judiciary, 114th Cong. (2016) (statement of Linda E. Hurley, Chief Operating Ofcer and Director, Clinical Services, CODAC Behavioral Healthcare, Inc.), 2016 WL 319842. 84 See, e.g., America’s Growing Heroin Epidemic: Hearing Before the Subcomm. on Crime, Terrorism, Homeland Sec., and Investigations of the S. Comm. on the Judiciary, 114th Cong. 60–68, 64 (2015) (prepared statement of Nancy G. Parr, Commonwealth’s Attorney, City of Chesapeake, Va.) 2015 WL 4538567 (“There are too few treatment programs. There are too few afordable treatment programs. There is insufcient funding for valid treatment programs. There is a stigma related to seeking treatment. Money addresses the frst three problems and education can address the fourth.”). 85 See, e.g., NIDA 2014, supra note 41. 86 Some groups voiced concern over the addictiveness of methadone, the 392 El-Sabawi that MAT could and should be combined with psychotherapeutic treatment and that MAT was not for everyone.87 However, the need to expand the number of treatment providers that were legally able to provide MAT was frequently mentioned.88 Although overdose reversal medications (ORMs) do not technically reduce the demand for drugs, I considered any narrative referencing the lack of access to ORMs as demand causal narratives, because ORMs are harm-reduction methods that are meant to be followed up with treatment for the underlying substance abuse.89 Lack of access to ORMs was not necessarily cited as a major cause of the opioid crisis; however, lack of access to ORMs was cited as a factor that contributed to the scope of the problem.90 Further, even if the causal narratives used did not cite to a lack of access to ORMs as the dominant cause, many referred to increasing access to ORMs
potential for its abuse, and the possibility of diversion. See, e.g., Drug Abuse in Native Communities, supra note 65. 87 See, e.g., NIDA 2014, supra note 41. 88 See, e.g., Opioid Abuse Among Older Americans, supra note 43; Opioid Abuse in America: Facing the Epidemic and Examining Solutions: Hearing Before the S. Comm. on Health, Educ., Labor, and Pensions, 114th Cong. 8–15 (2015) (prepared statement of Leana Wen, M.D., Health Department Commissioner, Baltimore, MD), 2015 WL 8489722; Statement of Kolodny, supra note 66. 89 Naloxone for Opioid Overdose: Life-Saving Science, Nat’l Inst. for Drug Abuse, https://www.drugabuse.gov/publications/naloxone-opioid-overdose-life- saving-science/naloxone-opioid-overdose-life-saving-science (last updated Mar. 2017). 90 See, e.g., Departments of Labor, Health and Human Services, Education, and Related Agencies Appropriations for 2016, Part 6: Hearing Before the Subcomm. on the Dep’ts of Labor, Health and Human Servs., Educ., and Related Agencies of the H. Comm. on Appropriations, 114th Cong. 568–72 (2016) (prepared statement of Whitney O’Neill Englander, Government Relations Manager, Harm Reduction Coalition), 2015 WL 1967922; Examining the Growing Problems of Prescription Drug and Heroin Abuse: State and Local Perspectives: Hearing Before the Subcomm. on Oversight and Investigations of the H. Comm. on Energy and Commerce, 114th Cong. 15–24 (2015) (prepared statement of Fred Wells Brason, II, President and Chief Executive Ofcer, Project Lazarus), 2015 WL 1384265; Examining the True Costs of Alcohol and Drug Abuse in Native Communities: Hearing Before the S. Comm. on Indian Afairs, 114th Cong. 11–16 (2015) (prepared statement of Mirtha Beadle, Director, Ofce of Tribal Afairs and Policy Substance Abuse and Mental Health Services Administration, U.S. Department of Health and Human Services), 2015 WL 4572876; What Is the Federal Government Doing to Combat the Opioid Abuse Epidemic?: Hearing Before the Subcomm. on Oversight and Investigations of the H. Comm. on Energy and Commerce, 114th Cong. 58–70 (2015) (prepared statement of Douglas C. Throckmorton, M.D., Deputy Director, Center for Drug Evaluation and Research, Food and Drug Administration), 2015 WL 1967893. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 393 when proposing solutions to the problem.91 Finally, some causal stories did mention the lack of patient education as a contributing factor to the opioid crisis or referenced the need to educate patients on the risks of opioid prescriptions in an efort to decrease their demand for the drugs.92
B. Summary of Findings While CARA evidenced a rare instance in U.S. drug policy in which health solutions dominated legislation, the causal narratives used and the solutions adopted appeared more of a departure from the U.S.’s past approaches to drug policy than they actually were. The types of causal stories used by pressure groups in hearing testimony equally favored supply-side causal theories and ambiguous calls for increasing the access to treatment; the solutions ofered focused on decreasing the supply of opioids, most often through reducing the prescription of opioids overall via prescriber education and PDMPs. Although health actors may have been called to implement the proposals and health-related terminology may have been used, at their core, these solutions are supply-side solutions. The actors in the causal stories were diferent but the storylines remained similar. The drug dealers of the 1980s and 1990s were changed to physicians
91 See, e.g., Clancy, VA Opioid Prescription Policy, supra note 64; Drug Enforcement Administration: Hearing Before the Subcomm. on Crime, Terrorism, Homeland Sec., and Investigations of the H. Comm. on the Judiciary, 113th Cong. 12–18 (2014) (prepared statement of Hon. Michele M. Leonhart, Administrator, Drug Enforcement Administration), 2014 WL 4643550; Examining the Policies and Priorities of the U.S. Department of Health and Human Services: Hearing Before the H. Comm. on Educ. and the Workforce, 114th Cong. 12–28 (2016) (prepared statement of Hon. Sylvia Matthews Burwell, Secretary, U.S. Department of Health and Human Services), 2016 WL 1023258. Increasing access to ORMs included training or calling for the training of frst responders to administer ORMs. See, e.g., Border Security–2015, Volume 2 of 2: Hearing Before the S. Comm. on Homeland Sec. and Gov’t Afairs, 114th Cong. 1568–1578 (2015) (prepared statement of Hon. R. Gil Kerlikowske, Comm’r, U.S. Customs and Border Protection, U.S. Department of Homeland Security), 2015 WL 5317597; Deadly Synthetic Drugs and Poison Peddlers: Hearing Before the S. Comm. on the Judiciary, 114th Cong. (2016) (statement of Sullivan K. Smith, MD, FACEP, Medical Director, Emergency Department Cookeville Regional Medical Center, Cookeville, Tenn.), 2016 WL 3165409. 92 See, e.g., VA Accountability: Assessing Actions Taken in Response to Subcommittee Oversight: Hearing Before the Subcomm. on Health of the H. Comm. on Veterans’ Afairs, 113th Cong. 33−39 (2014) (prepared statement of Robert Petzel, M.D., Under Secretary for Health, Veterans Health Administration, U.S. Department of Veterans’ Afairs), 2014 WL 768554. 394 El-Sabawi or prescribers. Prescription drug companies and pill mills were substituted in for the international drug cartels.93 There appeared to be a general consensus that it was the availability of opioids that caused the nation’s drug problems—the underlying assumption that the mere availability of psychoactive substances would create a new class of drug users. Although the focus of the narratives and the aligning solutions were supply-oriented, and not evidence of a demand- side focus found in more progressive drug policy, these supply-side solutions were not the same criminal justice-oriented solutions of the past.94 And such a shift is at least a symbolic victory, as it evidences an understanding that the U.S.’s historic approach is not efective. However, the types of causal stories used to describe the opioid crisis and aligned solutions are piecemeal at best, superfcial at worst, and only bring the U.S. marginally closer to embracing the most evidence-based drug policy regimes. Moreover, the discourse focused more so on which policy solutions to enact, as opposed to fully engaging in a discussion of what caused the opioid crisis in the frst place. In much of the testimony, it was accepted as a given that over-prescription caused the opioid crisis and, as such, over-prescription needed to be curtailed. While the need to cut down on opioid prescriptions and to simultaneously better fund substance abuse treatment centers are worthwhile endeavors, unless the U.S. fully engages in a discussion of what causes a person to misuse prescription pain medication or illicit drugs, the billions of dollars of funding allocated to addressing the opioid crisis will not produce the desired results, nor will they have any lasting efect on stymieing future drug crises. Had their motivation been collectively to redefne problem drug use in a manner most aligned with best practices in drug policy, pressure groups might have focused on demand-side approaches that emphasize a public health orientation, or even better yet, an emphasis on improving the well-being of the drug user so that he is less likely to use.
IV. Concluding Thoughts In this article, I have reviewed the ways in which pressure
93 See, e.g., DEA 2016, supra note 46, at *3. Mexican cartels were also referenced as contributors to the opioid crisis, but the cartels were blamed far less frequently than health actors. See, e.g., id. 94 El-Sabawi, supra note 1, at 3−4. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 395 groups can use causal stories to infuence the types of policy solutions available to legislators seeking to address the policy problem, specifcally the current opioid crisis. To lend credence to the theoretical literature cited, I analyzed congressional hearing testimony given by pressure groups testifying on problem drug use prior to the passage of CARA, health-oriented federal legislation aimed at addressing the drug crisis. Since the types of causal theories used to describe a policy problem are posited to align with the types of solutions adopted, I expected to see health-oriented causal stories dominating the criminal justice-oriented causal stories commonly used to justify past U.S. drug policy.95 Pressure groups did indeed utilize a health-oriented approach to characterize the opioid crisis. The causal stories used painted the issue as one that was caused by health actors and one that should be solved using the health system. The transition from a criminal justice orientation to a health orientation shifted the blame from the drug user’s character to forces outside of the user’s control, like outside actors and biological predispositions. In doing so, the hearing testimony often portrayed drug users as persons in need of medical help as opposed to criminal punishment. This shift away from what European scholars have termed the “moral paradigm” approach and toward an assistentialism approach is laudable, as it makes treatment more likely than incarceration.96 Such a framing, however, remains decades behind our European counterparts who have surpassed the assistentialism approach to embrace a public health approach and have progressed beyond the public health approach to advocate for a well-being approach.97 Preceding CARA’s enactment, the bipartisan support for addressing problem drug use and the more positive social construction of the target population of drug users98 ofered
95 See generally id. (providing overview of some of these criminal justice oriented causal stories and policies). 96 The “moral paradigm” approach was infuenced by puritan ideology; the dominant causal narrative attributed addiction to the individual’s lack of self- control and overall character weakness, and drug users were characterized as “sinful” and “vicious.” See Ysa et al., supra note 9, at 3–4. The assistentialism approach is characterized by a belief that drug users are in need of saving and that the healthcare professional is the individual best suited for doing the saving; the dominant causal narrative attributed addiction to disease. See id. at 4. 97 See ALICE RAP Findings, supra note 13, at #4, 8, 42, 45, 48, 49. 98 See Taleed El-Sabawi, What Motivates Legislators to Act: Problem Defnition & the 396 El-Sabawi advocates a policy window of opportunity99 for which drug policy advocates could redefne problem drug use. Such an opportunity to re-characterize a policy problem is rare and the manner in which pressure groups choose to do so afects not only the current opioid crisis, but also has long-lasting efects on the path of drug policy in the future.100 Rather than take full advantage of this opportunity to re- characterize problem drug use in a way that aligned with best practices in drug policy, actors testifying before Congress were focused on the immediate need to decrease the availability of opioids, attributing the cause of the problem to the supply of opioids and proposing solutions to help decrease the supply. Given the over-use of prescription opioids in the last decade, it is not surprising that over-prescription was often cited as the main cause of the opioid crisis and that it was regularly accompanied by solutions aimed at decreasing the number of prescriptions. Despite the short-term benefts of supply control, as a long-term focus of drug policy, supply control-oriented drug policy, as opposed to demand control, is not a feature of the leading European drug policy model101 and has not been successful in controlling drug use in the U.S. historically.102 Admittedly, some pressure groups involved in the causal narrative discourse may have been most interested in supporting narratives that protected its members from blame and punishment, as opposed to strategically utilizing this window of opportunity to decrease problem drug use in the long term. However, even drug policy and health advocates that were concerned primarily with improving the rates of addiction and overdose did not take advantage of the opportunity to redefne drug use in a manner that made most likely the adoption of a drug policy system that would deliver the best
Opioid Epidemic, a Case Study, 15 Ind. Health L. Rev. 188, 211−12 (2018) (discussing the social construction of target populations in general and as applied to populations of drug users throughout history). 99 See supra text accompanying note 16. 100 See generally Frank R. Baumgartner et al., Lobbying and Policy Change: Who Wins, Who Loses, and Why (2009) (providing an analysis of group eforts to defne policy issues and noting the rarity of successful problem re-defnition). 101 Ysa et al., supra note 9, at 47−48. None of the trendsetting countries in drug policy prioritize supply reduction, whether it be through eforts to arrest and penalize high trafc ofenders, prevent the importation of drugs, or to monitor drug diversion from pharmacies and physicians. See id. at 47−68. 102 Courtwright, supra note 23, at 132, 159−60. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 397 long-term results. Although cloaked in medical and health terminology, many of the causal stories used by pressure groups emphasized the supply, or availability, of prescription opioids as the cause of the crisis and substituted actors in the medical industry for the street drug dealers of past narratives. Despite references to biological or genetic factors or lack of access to health services, the psychological, sociological, economic, and health factors that greatly impact drug use103 were essentially ignored. Of course, greater funding for drug treatment is greatly needed, as is the expansion of access to MAT, two solutions that were identifed by pressure groups. However, without building the structure that is found in model drug policy systems and without establishing coordination between agencies that address not only treatment but also the triggers and social determinants of drug use, the money allocated to address the opioid crisis will not address the root causes of problem drug use. Undeniably, the U.S. does not have the social safety net that is the hallmark of many European countries with model drug policies. For example, many of the countries with the best drug policies also have universal healthcare systems, as well as more generous welfare systems.104 Therefore, some may argue that European countries had the infrastructure and the policy experience to approach drug use as a public health problem or a well-being problem. Even conceding these claims, however, the U.S. does have a shadow or privatized welfare state105 that it can draw on and private actors within it that it can coordinate with in order to mimic European drug policy without overhauling its social welfare system. Aside from coordinating with the private sector, U.S. policymakers could work with state and local
103 See Laura Stoll & Peter Anderson, Well-being as a Framework for Understanding Addictive Substances, in The Impact of Addictive Substances and Behaviours on Individual and Societal Well-Being 53, 58–64 (Peter Anderson et al. eds., 2015) (discussing the link between factors that comprise a person’s well-being and various addictions). See generally Robert C. Pope et al., The Social Determinants of Substance Abuse in African American Baby Boomers: Efects of Family, Media Images, and Environment, 21 J. Transcultural Nursing 246 (2010). See also Petra Meier et al., Project Area 3: Determinants of Addiction, ALICE RAP, http://www.alicerap.eu/about-alice-rap/areas-a- workpackages/area-3-determinants-of-addiction.html (last visited Mar. 23, 2018). 104 See generally Ysa et al., supra note 9. 105 See, e.g., Marie Gottschalk, The Shadow Welfare State: Labor, Business, and the Politics of Health Care in the United States 1–2 (2000). 398 El-Sabawi governments, as well as with existing federal programs, to ofer coordinated services and rehabilitation programs for drug users or persons at risk for drug use. Federal funding to address the opioid crisis can be allocated not only to fund treatment, but also to assist with housing, job training, and trauma treatment, thereby increasing drug users’ quality of life and decreasing their demand for drugs. However, without framing drug use as a problem caused by demand—as a problem which is rooted in psychological, social, economic, and behavioral factors—the wrap-around solutions needed to treat and prevent drug use are not even on the table for discussion. Such a holistic causal defnition is necessary to make policy alternatives available that embrace multimodal policies, involving the medical, public health, social services, criminal justice, housing sector, rehabilitation services, and job training and reintegration programs that are key features of trendsetting drug policy models adopted in other developed countries. These policy frameworks not only address current drug crises but also prevent future crises by ensuring a continuum of care that extends beyond the walls of traditional treatment and confnement—progressing to the adoption of what European scholars have called the “well-being paradigm,” whose end outcome is to improve drug users’ well- being.106 Pressure groups that have the time and attention of legislators looking to adopt a problem defnition for the opioid crisis are in prime positions to popularize such demand causal stories. And, although it is common for scholars and concerned citizens to consider organized interests as corrupt players in politics, they ofer both groups access to the problem defnition process. After all, organized interests include professional organizations and citizens’ groups, groups that are open to legal scholars and concerned citizens alike to join, to participate in, and to infuence. In conclusion, pressure groups’ adoption of a health approach to defning the opioid crisis was notable, but far from the redefnition needed to efectuate true drug policy reform. If policy actors are interested in both addressing current drug misuse and preventing future increases in misuse and overdose deaths, the causal stories that they use to describe the cause of drug use must be more than
106 ALICE RAP, Description and Analysis of Addiction Governance Practices Understanding Changes in Governance Practice 129 (2014), https://www.alicerap.eu/resources/documents/cat_view/1-alice-rap- project-documents/7-technical-reports.html?start=10. VOL. 11, NO. 1 NORTHEASTERN UNIVERSITY LAW REVIEW 399 superfcially health-oriented. Concerned actors must dig deeper and ask not only why is there an increase in the drug supply, but ask instead, why is there an increase in demand for drugs? Dr. Andrew Weil provides a thought-provoking answer to this question that can challenge the dominant causal theories used to explain the opioid crisis. He writes,
To come up with a valid explanation, we simply must suspend our value judgments about kinds of drugs and admit (however painful it might be) that the glass of beer on a hot afternoon and the bottle of wine with a fne meal are no diferent in kind from the joint of marijuana or the snort of cocaine; nor is the evening devoted to cocktails essentially diferent from the day devoted to mescaline. All are examples of the same phenomenon: the use of chemical agents to induce alterations in consciousness.107
He goes on to theorize that people use drugs because they wish to change their consciousness, and their inner need to change consciousness is mostly unafected by whether or not the drugs are legal.108 If Dr. Weil is correct and people do demand and use drugs to alter their consciousness—if the need and desire to alter one’s consciousness is so deep that legality of the drug is inconsequential— then maybe rather than focusing on decreasing the supply of drugs, drug policy advocates are best advised to ask why chronic and long- term drug users feel such an overwhelming desire to alter their consciousness, or put another way, to escape their reality. Do they have an underlying and untreated mental health issue for which drug use provides relief? Are their living circumstances so abysmal that a drug-induced state is their best escape? Or, are they genetically predisposed to addiction or have underlying altered brain structure from use? These questions are by no means exhaustive and do not address all of the potential causes for a user’s demand for a drug. However, asking such questions leads us to identifying causes that align with policy proposals that can change the path of drug policy from a supply orientation to a demand orientation. Pressure groups’
107 Andrew Weil, Why People Take Drugs, in The American Drug Scene: Readings in a Global Context 72−80, 73 (James A. Inciardi & Karen McElrath eds., Oxford Univ. Press, 7th ed. 2015) (1972). 108 Id. at 73–74, 80. 400 El-Sabawi use of a health-oriented frame is a step in the right direction, as long as we acknowledge that it is a small step, and move forward with the intent of taking advantage of future windows of political opportunity to advance not only a health frame but a public health frame, or even a well-being frame, that places the demand of the user at the heart of its narrative. NUMBER 1
Tool in the “Drug andTool War” Beyond Matthew B. Lawrence Health, Housing, and the Law Abraham Gutman, Katie Moran-McCabe, Scott Burris Structural Determinism Amplifying the Opioid Crisis: the It’s Healthcare, Stupid! Terry Nicolas P. The Role Pressure of Groups and Problem Definition in Crafting Legislative Solutions the to Opioid Crisis El-Sabawi Taleed Editors’ IntroductionEditors’ Seriously: Psychological Torture Taking The NatureTorturous Credible of Death Threats and the Collateral Consequences for Capital Punishment Bessler D. John Family Protection in the Law Succession: of The Policy Puzzle Storrow Richard F. Firearms and Physicians: Finding a Duty to Discuss Elisabeth Ryan J. Deputizing Family: Ones Loved as a Regulatory 1 xi 98 251 315 195 155 372 VOLUME 11 ARTICLES
VOL. 11, NO. 1 2019